SUBCOMMISSION CONTINUES DEBATE ON ROLE OF INTERNATIONAL FINANCIAL INSTITUTIONS IN PROMOTING HUMAN RIGHTS

Subcommission on Promotion and
Protection of Human Rights
53rd session
10 August 2001
Afternoon


The Subcommission on the Promotion and Protection of Human Rights this afternoon continued its debate on the role that the international financial institutions -- particularly the International Monetary Fund (IMF) and the World Trade Organization (WTO) -- played in the promotion of human rights.

Keeping up with a discussion that began this morning when a representative from the IMF said that in the strict sense, the IMF did not have a mandate to promote human rights and was not bound by various human rights declarations and conventions, the representative took the floor again to refute certain statements made by Subcommission Experts and representatives of non-governmental organizations (NGOs). He said, after reiterating that there was no mandate, that the Fund was doing many things to promote human rights. In fact, the Fund was participating in the Subcommission to promote a dialogue.

Further, he said, it was important to set aside the impression, brought up earlier by an Expert, that the Fund was no more than a debt collector. That was clearly not the case. Each of the member countries participated in an economic dialogue with the Fund on an annual basis. The countries valued visits from the Fund's staff to talk about the economic and financial setting. It was more than a debt collector. On structural adjustment, which everyone was unhappy with how it was working, he asked what was supposed to be done -- stick with it, or try to improve it. The Fund tried to improve it, and it had been done with various United Nations targets in mind, including the targets in the Millennium Declaration.

Subcommission Expert Yozo Yokota said it was important to draw a distinction between international law as outlined by the various human rights treaties, and customary international law, which the IMF had to follow. If that was accepted, he said, human rights norms and standards were part of customary law, and thus, the IMF had a mandate.

By contrast, a representative of the World Trade Organization said the WTO was an international organization that had a distinct legal personality, and as such, the WTO and its members were bound by international law and the treaties it had signed. Responding to another point raised concerning the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), a different WTO representative said there was widespread recognition of the flexibility in TRIPS if it was properly applied to protect public health. There were efforts under way to educate Member States on TRIPS so that they would understand and have the confidence to use the agreement to the fullest extent.

A representative of the World Bank, meanwhile, said the Bank realized profoundly that economic policies were connected with human rights; but it also was saying that economics mattered to human rights, and that economic progress helped human rights. The frustration he heard in this room and other rooms was related to the fact that in many places, the implementation of human rights was not taking place; as a result the World Bank was doing a great deal to help fund such things as schools and to help reduce poverty. The Bank, it was important to say, responded to the will of the Governments that made up its membership. Any country in this room that wanted to implement human rights could approach the World Bank for help in terms of implementing human rights. It should be added that economics could not do everything -- political considerations were vital for advancing human rights.

Earlier in the plenary meeting, several non-governmental organizations (NGOs) spoke about various forms of economic, social and cultural rights. The representatives focused on, among other things, the right to self-determination, the right to free association, and the right to development.

The NGOs participating were the International Human Rights Association of American Minorities, the Society of Threatened Peoples, and the Movement against Racism and for Friendship among Peoples.

Experts participating were Mr. Yokota, Miguel Alfonso Martinez, Stanislav Ogurtsov, Soo Gil Park, Francoise Jane Hampson, Fisseha Yimer, Asbjorn Eide, Vladimir Kartashkin, Louis Joinet, Jose Bengoa, Fan Guoxiang, Halima Embarek Warzazi, Erica-Irene Daes, and El-Hadji Guisse.

When the Subcommission meets at 10 a.m. on Thursday, 9 August, it will complete its work on economic, social and cultural rights, and begin consideration on matters on racial discrimination.

Statements

USMAN RAHEEM, of the International Human Rights Association of American Minorities, said the people of Jammu and Kashmir had been denied the right to self-determination for 54 years, had been divided between occupation by India and Pakistan, and as a result were being denied their economic, social and cultural rights in numerous ways. They were still seeking one identity -- their own -- and for the last 12 years they had been killed for asking for that right.

Before 1947, the area had had a self-sustaining economy based on agriculture, but now it was in economic dependency and stagnation; it had abundant natural resources, including water, yet Kashmiris had been denied control over these resources. One example was the Indus Water
Treaty signed by India and Pakistan that involved no participation of the people of Jammu and Kashmir and almost completely curtailed their right to decide how to use and sustain the state's vast water resources. Srinigar, the capital, had a water shortage. Now India was planning a number of hydroelectric projects in Jammu and Kashmir with the aid of multinational corporations; meanwhile much of the hydropower generated there was exported to the Indian Northern Power Grid. Kashmiris still waited for the day when they could flourish as their own nation.

MEHMET BEKAROGLU, of the Society for Threatened Peoples, said it was unfortunate that there was not any positive news regarding human rights in Turkey. There was continued harassment of human right defenders there. The number of people sentenced to prison for their beliefs had been increasing as well. The existing Constitution limited the freedom of people, including trade unions and political parties. In Turkey, 50 political parties had been banned thus far. Victims of human rights violations had been seeking justice through the European Court of Human Rights. The European Human Rights Charter was seen as a reference for many freedom fighters, but its relevance was now questioned. Human rights and freedoms were for every person without exception. There was still a problem with anti-democratic practices and human rights violations in Turkey.

ROLANDE BORRELLY, of the Movement against Racism and for Friendship Among Peoples, said there had been considerable departure from the Declaration on the Right to Development over the last 15 years, and that helped explain the lack of progress made and lack of attention to the subject. The subject of the right to development concerned not just the individual but the community; yet one independent expert was more and more leaning to the direction of eliminating this holistic approach. The individualist, liberal vision of the right to development was ignoring something important -- it broke from a sense of communal responsibility, from the idea that development per se was not enough if it happened to some people and not to others. Development was a collective subject whose proper focus was society.

The Subcommission should think about introducing the concept of poverty into its discussions on development. For over a decade everyone had been trying to find a "good" definition of poverty, perhaps because there was such an individualistic approach to human rights. It was better to define it in terms of needs and to accept that it was a topic with ideological connotations, based on the reactions of the international financial institutions when they were faced with the failure of their own policies and programmes.

MIGUEL ALFONSO MARTINEZ, Subcommission Expert, said that the three weeks which the Commission on Human Rights had given to the Subcommission for its annual meeting did not enable the Experts to read and discuss all the documents under item 4. He had not been able to comment on the report on globalization, but he would provide his ideas in writing to his colleagues before the end of the session.

STANISLAV OGURTSOV, Subcommission Expert, said each year the work on studying the problem of globalization was increasing, and the Experts had to increase their research to reach a conclusion on what globalization actually was. The process of globalization made the economies of national States increasingly open and stimulated development. But most of the profits went to the wealthier countries. In the context, international relations were becoming more interdependent and interrelated. At the beginning of the new century, the problem was not progress but human survival. New models of development were needed. The struggle to eliminate poverty was one of the biggest challenges for human rights. All that encompassed poverty -- education, health, development -- were not just aims, they were human rights themselves. The international financial organizations were made up of States, and no State had ever said it was not interested in human rights. What was said this morning by the International Monetary Fund was a frightening and sad statement -- something that had not been heard since World War II. If what the representative said this morning was true, it was not known how the international financial institutions would continue to exist.

SOO GIL PARK, Subcommission Expert, said he agreed with the Special Rapporteurs that more had to be done to connect international economic law and international human rights law. As for intellectual property rights and human rights, he agreed that the normative pillar in this case, article 15 of the International Covenant of Economic, Social and Cultural Rights, which cited the right of all to benefit from scientific and technological progress, had to be focused on relevant parts of the TRIPS agreement; it seemed to him that the balance was shifting in favour of property-rights holders, and that people in need were being denied such things as the rights to health, education, and to freely control and dispose of their own natural resources.

On the point made by Mr. Yokota and Mr. Eide on the primacy of human rights over other international regimes, it was worth looking at the United Nations Charter, whose primacy was recognized in any cases of conflict. There was no doubt that human rights instruments prevailed over such instruments as those controlling the World Trade Organization. He was concerned by the remarks he had heard from the World Trade Organization (WTO) and the International Monetary Fund (IMF); he was impressed by many aspects of the dispute-settlement mechanism of the WTO, but he remained concerned about some aspects of the mechanism. On the remarks made by the IMF, he could understand the points made, but believed that what the representative said would enable a very fruitful dialogue to occur in the way of persuading the IMF and other international financial institutions of the primacy of human rights.

FRANCOISE JANE HAMPSON, Subcommission Expert, said traditionally, it had been assumed that non-governmental organizations (NGOs) and States were on opposite sides. In the area of economic and social rights, certain States claimed they would like to do more to promote, for example, the health and education of their population, but they were prevented from doing so. This commitment needed to be tested to see if it was genuine or a smokescreen. A State which really wanted to promote the health and education of its people needed to be able to show that it had raised its human rights obligations in any discussions with international financial institutions. The activities of business enterprises had an obvious impact on human rights protection. This was as true of business enterprises functioning in just one State, or those with activities in other States and transnational corporations. Indeed, in terms of the number of people affected, it was likely that more were affected by national business enterprises than transnational corporations.

On the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the representative of the World Trade Organization had suggested that there was sufficient flexibility in the TRIPS Agreement to meet the needs of all parties. This was not agreed upon. In some cases, a patent holder could recognize that it was in his interest to accept a compulsory license. That was only true, however, in the case of countries with a large population. That was a novel form of discrimination. There was a problem in including the things over which patent rights were asserted, and the lack of encouragement in the present system for the development of medicines and treatment for illnesses found principally in the developing world. This problem would either be unchanged or would be made worse by a system of incentives based on price differentials. Pharmaceutical companies would have an incentive to concentrate on those drugs that generated the greatest profits.

This suggested there was an intrinsic problem arising out of the legal nature and characteristics of the patent. This was a man-made legal construction. It could be an old institution, but that was not a reason for examining whether the patent now met the needs of the international community, at least in the field of drugs and medical treatment. Other models needed to be examined. For example, the law of the sea contained a regime to regulate the exploitation of the resources of the deep sea bed. It was based on the concept of the common heritage of mankind. Clearly, pharmaceutical companies needed to be able to recoup their research and development costs, but equally clearly, there was a need to ensure that those who needed medical treatment had access to it, financially and geographically.

LOUIS JOINET, Subcommission Expert, said he had studied the document read out this morning by the International Monetary Fund (IMF) representative, and he did not think the phrase in question had the resonance it had been given by the Subcommission this morning. The passage as a whole did in fact describe involvement of the IMF in human rights, if the whole thing was read. This whole discussion might be based on a misunderstanding.

GRANT B. TAPLIN, of the International Monetary Fund (IMF), said the Fund, in a strict sense, did not have a mandate to promote human rights. Human rights were not mentioned in the articles of agreement. Moreover, the autonomy of the Fund in the United Nations system was established in its agreement with the United Nations. However, that was all to narrow. The question should be what was the Fund effectively doing to promote human rights. It was doing many things through many channels. The IMF was here this morning to promote dialogue with the Subcommission. It was hoping to set up the framework so that a productive dialogue could be undertaken. The IMF was open to dialogue. The Fund staff sought to cover as many human rights meetings as possible. Meetings had been put together with the Fund staff with Special Rapporteurs and Experts. It had also worked with the Commission on Human Rights in various matters.

This morning there appeared to be the impression that there was a split between international economic law and international humanitarian law. But these two could mesh. It was hoped to set aside the impression that the Fund was merely a debt collector -- that was clearly not the case. Each of the member countries participated in an economic dialogue with the Fund on an annual basis. The countries valued visits from the Fund's staff to talk about the economic and financial setting. It was more than a debt collector. Everyone was unhappy with how structural adjustment was working. What was supposed to be done -- stick with it, or try to improve it. The Fund tried to improve it, and it had been with various United Nations targets in mind, including the targets in the Millennium Declaration.

FISSEHA YIMER, Subcommission Expert, said the International Monetary Fund (IMF) representative said there should not be any cleavage between human rights and IMF aims, but nonetheless he believed there was still cleavage. The Fund's "position" meant the Fund's policy, and the representative had given the IMF's position or policy on human rights in which the policy was that the Fund did not have to follow human rights, but took steps that in any case promoted human rights.

He did not think that was correct, Mr. Yimer said. The Fund's policy apparently did not acknowledge a legal obligation to follow human rights instruments, and he felt that the Fund did have such a legal obligation. That was where the two of them differed.

ASBJØRN EIDE, Subcommission Expert, said the World Trade Organization (WTO) had said that the members of the WTO were bound by human rights, and there was no problem with that. The basic principle was clear. But what was said by the International Monetary Fund was a fairly strong statement. That was very intriguing. It was good to see there was some possibility of a dialogue. Human rights included legal rights -- the right to education and the right to health were legal rights. It was more than building a macroeconomic system. There had to be an understanding of the technical meaning of human rights.

VLADIMIR KARTASHKIN, Subcommission Alternate Expert, said he thought this discussion was based considerably on a misunderstanding. He wondered first of all if Mr. Taplin's position was precisely that of the IMF; second, Mr. Taplin was not a lawyer, and any IMF lawyer would say clearly that there were human rights declarations and human rights conventions, and while declarations were not legally binding, conventions were; conventions must be observed by States that had acceded to them. A whole range of principles and standards also were involved which were binding on all, both on States and international organizations. Mr. Taplin was saying the Fund had a certain degree of autonomy within the United Nations system. But despite that autonomy, it was obliged to abide by the principles of the United Nations Charter. All had to observe these principles. The position he had just described was generally understood and subscribed to among lawyers.

He welcomed the will Mr. Taplin had expressed to have the IMF do everything it could to encourage human rights. In this sense, there was a good basis for dialogue and agreement.

LOUIS JOINET, Subcommission Expert, said he did not agree entirely with the statement he had just heard. Strictly, the Fund was not a party to the treaties. For many years, it was a struggle to get these organizations to come here, and now they were being subjected to attacks, which the Chair had warned the members against. If cooperation was a goal, the dialogue would have to be open.

JOSE BENGOA, Subcommission Expert, said he had heard economic, social and cultural rights discussed a great deal over the years, and wished to thank the representatives of the International Monetary Fund (IMF) and the World Trade Organization (WTO) who had come to explain very clearly the policies of their organizations. Many people saw these organizations as the Horsemen of the Apocalypse, and it was wrong to regard them that way. Policies of financial organizations tended to be suspect these days, and the presence of these representatives showed that they were willing to have a dialogue. One interesting element was the IMF's new programme to combat poverty as contained in the IMF's declaration; this was something new, and it would be valuable for the Subcommission to be able to analyse the question and pay proper attention to it. It was the Subcommission's job to study poverty; it had been asked to do this.

How the IMF's policy operated was a matter of interest, as was how the policy operated in terms of combatting poverty while respecting human rights. He wished to know if while doing its study on combatting poverty, the Subcommission could count on receiving information and help from the IMF and related organizations, and whether it and the financial institutions could agree on common terms so it would be clear everyone knew what was being talked about.

. GABRIELLE MARCEAU, of the World Trade Organization (WTO), said the WTO was an international organization that had a distinct legal personality, and as such, it was its view that the WTO and its members were bound by international law and the treaties it had signed. Was there a conflict between human rights obligations and WTO obligations? Was there a conflict between treaties or negotiating positions? In the formulation of policies, the WTO could not go down the path of the violation of human rights. The WTO did not issue policies -- it had rules so each member country could determine their own policies. Concerning dispute settlement, there had been a question concerning the judges on the board. The judges that were chosen were chosen from a list. On the roster, there was no screening. If a country wanted a person on the list, it would be put on the list. There was a very detailed code of ethics that allowed members to challenge and disqualify a panellist. The only conclusion of a WTO report would be for a State to bring a measure or a problem into conformity with WTO.

MR. TAPLIN of the International Monetary Fund, said Mrs. Hampson had made a specific point about the flexibility of the TRIPS agreement. There was widespread recognition of the flexibility in TRIPS if it was properly applied to protect public health. There were efforts under way to educate Member State on TRIPS so that they would understand and have the confidence to use the agreement to the fullest extent. As for Mrs. Hampson's argument that compulsory licenses would only work in countries with large populations, the matter was now being discussed as to how this arrangement might work in countries that did not have large generic drug capabilities. There also were several other possibilities related to the issue now being discussed in the TRIPS council.

YOZO YOKOTA, Subcommission Expert, said the discussion which had taken place was very important. Both the International Monetary Fund (IMF) and the World Trade Organization (WTO) should be praised for coming and partaking in a constructive dialogue. Human rights today were considered a part of customary international law -- not just the legal international human rights treaties -- which the IMF also had to follow. If this was accepted, human rights norms and standards were part of customary international law, and thus, the IMF did have a mandate. This was a very important aspect, and this was an area in which there needed to be an understanding with the representative of the IMF.

FAN GUOXIANG, Subcommission Expert, said it was good to have representatives of the International Monetary Fund (IMF) and the World Trade Organization (WTO) at the Subcommission and to have them shed light on these important issues. Economic organizations should of course promote human rights; whether or not they were legally bound by human rights -- that was perhaps a different issue. There were likely to be contrasts and contradictions if this matter was studied. Were the financial institutions bound by human rights? Well, some UN Member States were parties to human rights treaties, and others were not.

He believed this dialogue was a fruitful one. If the Commission on Human Rights was to ask these institutions to consider the economic and social aspects of human rights, it might be told the matter was not entirely appropriate. But it was certainly appropriate to ask these institutions what they were doing to advance human rights.

HALIMA EMBAREK WARZAZI, Subcommission Expert, said it was hoped that this dialogue would continue. It was understood that the representative said that there was a gap between the two groups of rights. Human rights were indivisible and interdependent, and could not be considered apart. It was not known if this was a problem with translation. When the International Monetary Fund (IMF) had signed an agreement with the United Nations in 1947, the Universal Declaration of Human Rights had not yet been drafted. But it was thought that the Declaration was part and parcel of the United Nations. Perhaps this was foolish, but it was wondered if these agreements were eternal, or could they be amended and improved. Could less autonomy be given to these financial institutions?

ERICA-IRENE A. DAES, Subcommission Expert, said the presence of representatives of these agencies was a heartening indication that they wanted to cooperate with the Subcommission. She had cooperated closely with representatives of the World Trade Organization (WTO) two years ago during a workshop on the protection of the cultural heritage and intellectual property of indigenous peoples. Two WTO representatives came to the workshop, worked hard, and really contributed to the success of the workshop. She encouraged the WTO to continue this kind of cooperation. She felt the same gratitude for the help given by the World Bank to the Working Group on indigenous populations over the years. Many times she had disagreed with the Bank on certain measures, certain projects, but always the Bank had provided an explanation and kept the dialogue open.

EL-HADJI GUISSE, Subcommission Expert, said there was a concern about the embargo and economic sanctions. There had been no positive results because of the embargo in Iraq. Was not now the time to appeal to the international community? The Iraqi people were humans of this world, they were not from another planet. Another concern was the absurdity that was going on in Sierra Leone. There was an embargo on diamonds, but why not on the arms? It was the arms that were getting in the way of peace there.

MR. TAPLIN, of the International Monetary Fund, said, in response to statements made by Subcommission members, that the Fund did not sign treaties with Member States -- only agreements.

MR. YOKOTA said it was assumed that the International Monetary Fund, at headquarters, had agreements with the World Bank.

ALFREDO SFEIR-YOUNIS, of the World Bank, said these sorts of dialogues were of fundamental importance for the World Bank, and people may have underestimated the influence such dialogues had on the Bank. In fact the Bank had carried out a dialogue on human rights for years; he had been in Geneva for two years, and had followed every day of the Commission on Human Rights, and the Bank had put together many documents in response to Commission discussions to explain it’s positions. The Bank had participated in many open-ended working groups on human rights matters, and it had participated in the working group on indigenous populations for 19 years.

As for the right to development, extensive efforts and dialogues had been held to mainstream the right to development into the Bank's programmes and policies. He did not think this discussion should have a legal basis, should be an argument over what was right or wrong; it should be on what should be done and what was already being done. The World Bank realized profoundly that economic policies were connected with human rights; but it also was saying that economics mattered to human rights, and that economic progress helped human rights. The frustration he had heard in this room and other rooms was related to the fact that in many places the implementation of human rights was not taking place; as a result the World Bank was doing a great deal to help fund such things as schools and to help reduce poverty. The Bank, it was important to say, responded to the will of the Governments that made up its membership. Any country in this room that wanted to implement human rights could approach the World Bank for help in terms of implementing human rights. It should be added that economics could not do everything -- political considerations were vital for advancing human rights.

MR. JOINET said the World Bank should be helped in developing its capacities.


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