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SUBCOMMISSION RECOMMENDS ESTABLISHMENT OF SESSIONAL"SOCIAL FORUM", CALLS FOR STUDIES ON EDUCATION, EFFECTS OF TRADE AND FINANCIAL POLICY ON HUMAN RIGHTS
20 August 1998
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AFTERNOON
HR/SC/98/25
20 August 1998
Subcommission Continues Debate on Administration of Justice
The Subcommission on Prevention of Discrimination and Protection of Minorities requested this afternoon authorization to create a "Social Forum" to meet during the Subcommission's annual sessions and exchange information on disparities in income distribution and global poverty; to analyse violations of economic, social and cultural rights; and to discuss and propose legal standards and guidelines on these subjects. It also sought authorization from its parent body, the Commission on Human Rights, to appoint a Subcommission expert as Special Rapporteur on economic, social and cultural rights to coordinate the work of the Social Forum.
Acting on other resolutions under the rubric of economic, social and cultural rights, the panel asked two of its members to compile studies on the right to education and on "better reflection" of human rights standards in international and regional trade, investment and financial policies.
The Subcommission further recommended to the Commission on Human Rights adoption of a draft decision endorsing establishment by the Subcommission of follow-up machinery on the question of impunity for violators of economic, social and cultural rights.
Having completed action on resolutions and decisions left over from this morning and Wednesday afternoon, the Subcommission carried on with its debate on matters related to the administration of justice, hearing statements from a series of non-governmental organizations (NGOs).
The following NGOs spoke: European Union of Public Relations; World Federation of Trade Unions; Liberation; North-South XXI; African Association of Education for Development; Pax Christi International; International Prison Observatory; International Federation of Human Rights; Inter-Parliamentary Union; and Indian Movement "Tupaj Amaru".
Also participating in the debate were Subcommission experts Francoise Jane Hampson and Soli J. Sorabjee.
The Subcommission will reconvene at 10 a.m. Friday, 21 July, to continue discussion of issues related to the administration of justice.
Action Taken on Draft Resolutions, Statements
HALIMA EMBAREK WARZAZI, Subcommission expert, said she had not had the time to study some of the documents that the Special Rapporteurs had put before them, and she now wished to make a comment on the right to education; when she had suggested it last year, she had not been thinking of the right to education in human rights. A compromise solution had been put forward following some discussion, but she did not agree with the Special Rapporteur when he said that the right to education went hand in hand with human rights education. Here they were trying to ensure that everyone had the right to know what their rights were, and how they could obtain those rights. Once they gained that knowledge, they could be awakened by a campaign on their rights and the rights of those they lived with. Therefore, unlike the Special Rapporteur, she believed that you could not have human rights triumphing without education.
Mrs. Warzazi said civil society and the international community had to condemn any policy that had as its aim suppression of social and educational programmes. A conference in Washington last July had noted that 130 million children had no access to primary education. Although some people thought that this was a social right, the implications of the right to education made it a political right. She thanked the Chairman for underlining the problems of young girls condemned to ignorance. Any study on the right to education had to have a chapter on the right to education of the girl child.
ASBJORN EIDE, Subcommission expert, said he agreed with Mrs. Warzazi; he also underlined the importance of the Convention on the Rights of the Child, whose article 9 had the best definition he knew of the right to education. He further agreed that it was extremely important to include in the study the effects of education or denial of it on the development of the girl child.
FAN GUOXIANG, Subcommission expert, said that he entirely supported the draft. Children's education was particularly important. There was a Chinese saying: "children were the future of the country and the world". How the next century would develop depended on children, and therefore education should be
continuously strengthened.
In a resolution (E/CN.4/Sub.2/1998/L.21) on the realization of the right to education, including education in human rights, adopted by consensus without vote, the Subcommission endorsed fully the conclusions of the working paper of its expert Mustapha Mehedi and requested him to prepare, without financial obligations, a more detailed working paper on the right to education, and particularly human-rights education, for submission to the Subcommission at its fifty-first session, the purpose of the paper being to explain the content of the right to education, taking account, in particular, of its social dimension and the freedoms it included and of its dual civil and political rights and economic, social and cultural rights character, and to identify ways and means of promoting human-rights education.
MUSTAPHA MEHEDI, Subcommission expert, said that he supported Mrs. Warzazi's proposal. The fact that they had been able to add the right to education in human rights which was really a product of the right to education was positive. This working paper was not a final document; it was a rough draft, a listing of those aspects which pertained to the issue. He felt that the universality and indivisibility of human rights were features that were now recognised in peoples' minds, perhaps the cross-sectorality of this right needed to be examined. This was not a report, and he was still far from being a Special Rapporteur; all he had tried to do was make some recommendations. He would take account of what had been said about the role of parents, and the girl child. Nevertheless, a general study on the right to education was closely tied to the right to human rights education. It was important to show how you could construct a true human rights culture. He would have wished, with the agreement of his co-sponsors, to add two paragraphs that were missing from this draft. The educational rights, not the right to education itself, had to fit in, for example with the cultural right. It was important to ensure cooperation with the Special Rapporteur appointed by the Commission on Human Rights and other organs. It was important to keep the wording 'particularly in the field of human rights' as it was a corroboratory of the right to education.
In a resolution (E/CN.4/Sub.2/1998/L.22) on human rights as the primary objective of trade, investment and financial policy, adopted without a vote, the Subcommission emphasized that the realization of human rights and fundamental freedoms was the first and most fundamental responsibility and objective of States in all areas of governance and development; urged United Nations agencies, including the International Monetary Fund and the World Bank, to at all times be conscious of and respect the human-rights obligations of the countries with which they worked; urged member States of the Organization for Economic Cooperation and Development to review the draft text of the Multilateral Agreement on Investment to ensure that all its provisions were fully consistent with their human-rights obligations, and to keep these obligations in mind during any future negotiations on the agreement; decided to entrust a Subcommission expert with the task of preparing, without financial
implications, a working paper on the ways and means by which the primacy of human-rights norms and standards could be better reflected in, and could better inform, international and regional trade, investment and financial policies, agreements and practices, and how the United Nations human-rights bodies and mechanisms could play a central role in this regard; and requested this expert to include in this paper an analysis of the text of the Multilateral Agreement on Investment from a human-rights perspective, and to consider ways to ensure that future negotiations on the agreement or analogous agreements of measures took place within a human-rights framework.
In a measure (E/CN.4/Sub.2/1998/L.23) on the question of the impunity of perpetrators of violations of economic, social and cultural rights, adopted without a vote, the Subcommission decided to recommend to the Commission on Human Rights adoption of a draft decision endorsing establishment by the Subcommission of follow-up machinery on the question of such impunity.
DAVID WEISSBRODT, Subcommission expert, said that he had reservations about the last paragraph, which did not make clear what the Commission had to do with the resolution. An amendment would make the objectives of the Subcommission clearer.
In a resolution (E/CN.4/Sub.2/1998/L.28) on human rights and income distribution, adopted without a vote, the Subcommission endorsed the conclusions of the final report on the subject and especially the recommendation for establishment of a “Social Forum” within the Subcommission; requested the High Commissioner for Human Rights to publish, in a joint publication in the official languages of the United Nations, the preparatory document on the relationship between human rights and income distribution prepared by Asbjorn Eide and José Bengoa's preliminarily, second, and final reports, and addendum, under the title: Income Distribution and Human Rights; and decided to submit to the Commission on Human Rights for adoption a draft resolution that would establish within the Subcommission a forum on economic, social and cultural rights, to be called the Social Forum, to meet during Subcommission annual sessions, with the objectives of exchanging information; following up on the issue of income distribution; following up on situations of poverty and destitution in the world; analysing violations of economic, social and cultural rights and discussing guidelines on these matters; and proposing legal standards and initiatives, guidelines, and other recommendations; requested the High Commissioner for Human Rights to send out invitations to the Forum; and decided that the Social Forum could request the Subcommission to name a Special Rapporteur for economic, social and cultural rights.
VLADIMIR KARTASHKIN, Subcommission expert, said the Social Forum was to meet during sessions of the Subcommission for two or three days. Within the Subcommission or as a separate gathering? Would there be separate meetings or simultaneous meetings? If separate and simultaneous, how could experts
participate, especially given their heavy schedule?
MR. FAN said he was glad that the right to economic and social rights had been given more importance in the Subcommission. Some colleagues had tried to find ways to put more importance on economic, social and cultural rights, and the resolution showed that Mr. Bengoa and the other sponsors also attached great importance to this balance. He agreed that the idea of a Social Forum did not fall within the purview of the Subcommission as the participants to the Social Forum would be invited by the High Commissioner, not by the Subcommission. The Social Forum was very big as a concept, and would not be as restrictive in scope as the Working Group - it could be bigger than the Subcommission, or even than the Commission on Human Rights- so the problem was raised: would the question of economic, social and cultural rights still be discussed in the Subcommission? Economic and social rights should also be regarded as a collective right; the right to development was not a right of individuals. As far as the right to development was concerned, the State had the main responsibility; on the other hand, the international community also had a responsibility. However, many developed countries had failed to fulfil their commitments in the field of the right to development, and many of the most developed countries were not that generous. So where was the basis? Did the responsibility lie with the State, the individual or the international community? These were major issues, and he wondered whether they could be resolved within the Social Forum. With regard to the draft resolution, the name “Social Forum” was quite ambiguous - and he had reservations on the whole of paragraph 4.
JOSE BENGOA, Subcommission expert, said that the Social Forum would be inside the Subcommission. The Social Forum had to meet during the time available to the Subcommission since the Commission on Human Rights had refused the request to extend the time available to the Subcommission. Perhaps once the Commission on Human Rights had been able to study the proposal, they could raise again the question of extra time. Mr. Fan had attached great importance to economic, social and cultural rights; he had attended many meeting in which these ideas were discussed, and the Social Forum had been raised as an idea and discussed - this had led him to make this proposal.
MIGUEL ALFONSO MARTINEZ, Subcommission expert, said the idea was to have the Forum meet within the Subcommission; of course it depended on the time available for the Subcommission's work; he had the impression from the Commission's guidance that the forum had to focus on matters where the Commission thought the Subcommission could provide guidance. He did not think two days for the forum would be sufficient -- at least three days should be set aside. Or perhaps the Subcommission should recommend strongly to the Commission that its time in Geneva be lengthened.
YOZO YOKOTA, alternate expert, said that initially he felt that they had to be careful not to duplicate the efforts of the Economic and Social Committee. He though that it was very important for the Subcommission to deal with the aspect of globalization, income distribution and extreme poverty and the effect they had on the enjoyment of economic, social and cultural rights. The Forum should focus on this so that it would not duplicate the work of ECOSOC.
MR. WEISSBRODT said he had the impression the Subcommission could create the Social Forum on its own, without seeking Commission permission; it could be described simply as a new formulation of the Subcommission agenda; that way it might be more achievable and less likely to be deconstructed by "higher bodies"; he would suggest changing the resolution to reflect that approach.
MR. FAN said that before making such a big step, it would be better to consult the Commission on Human Rights.
Administration of Justice
NAZIMA MUNSHI, of the European Union for Public Relations, said that in conventional parlance, the terms "administration of justice" and "detainees" suggested a relationship between the legal and institutional apparatus of a State and its citizens. In today's world, there was a different form of detention and a different form of administration of justice that needed to occupy our attention much more. States were answerable, but what about non-state actors who had increasingly become prosecutor, judge, jury, jailor and executioner. Hostage taking was the terrorist's way of administering justice, and these detainees were detainees not of law, but of causes and ideologies without any legal channel through which to plead their cause. The real problem facing the international community was how to protect the rights of these detainees who had committed no crime. It was time for the international community to develop similar laws for terrorist groups to follow with regard to the administration of justice and rights of detainees as it had for States; the actions of terrorist groups needed to be monitored as much as the actions of states. It was time to move away from comfortable definitions of human rights, and for the Subcommission to recognise who were the perpetrators of violence, and who were the victims: the States that were castigated were increasingly becoming victims of terrorists who knew no respect for human rights.
FRANCOISE JANE HAMPSON, Subcommission expert, said she could not see how the relationship between prisons and decisions of courts could be neglected; she did not see how State authorities could be responsible for sentencing convicted criminals and responsible for releasing them, but not for what happened in between, as would seem to be the case with privatization of prisons; those who delegated authority to private prisons remained responsible for what those running privatized prisons did; those incarcerated had to be protected; the State still had the same obligations; what mattered was not whether prisons were privatized or not, but that prisons remained the responsibility of the State and the effective preventive regulation of what happened to prisoners. She urged great care in how the term habeas corpus was used; the label must not be confused with the substance; there must be no shortcuts; what was needed was judicial control of procedural and substantive lawfulness of detention. The draft convention on disappearances deserved support and priority consideration by the Commission on Human Rights; nothing seemed to be worse than the worry, loss, and anxiety suffered by the families of "disappeared" persons; they were trapped; they were in a living hell that could not change until they got information; they could not put their lives back together and move on; it was not enough to condemn the practice of disappearances after the event; effective measures must be taken to put in place systems of investigation and redress to prevent deprivations of liberty from becoming disappearances.
GENEI SHIMOJI, of the World Federation of Trade Unions, said that despite the United Nations' Programme on Crime Prevention and Criminal Justice, many States carried out pre-trial detentions; this practice was more common in States that discriminated on the base of religion or belief. There was the resurgence of intolerance based on race, religion, ethnicity or creed, and this was alarming at a time when the expansion of education and communications should have increased appreciation of different cultures; this development was the gravest threat for the human rights of large sections of society. Ethnic cleansing took its cues from policies of intolerance, and the former Yugoslavia was a classic example. Even countries that had been independent for decades, like Pakistan, were not taking adequate action to curb this phenomenon. The mushrooming of groups around the world practising fundamentalist ideology and supported by certain nation States was becoming responsible for whole scale human rights abuses. This phenomenon had multiple effects as those who were persecuted in some parts of the world sought their revenge in other countries. Racial and religious prejudice was not the prerogative of backward countries. To achieve equal treatment for all people around the world, the international community needed to educate those Governments which had allowed discrimination to spread.
RACHEL GARSTANG, of Liberation, said that after removal of the Indonesian dictator Suharto, thousands of people, mostly women, had come forward in Aceh to testify about murderous abuses that had occurred during military operations in the region; so many men had disappeared that some villages were called "widows' villages"; at least ten mass graves had been identified; over the last year there had been many disappearances; withdrawal of combat troops from the area now might only allow the perpetrators of those atrocities to avoid identification by local residents and prevent their indictment before the courts; the United Nations must provide support to the people of Aceh and the Special Rapporteur on Extra-Judicial Executions should visit as soon as possible. Interference with the work of human rights defenders was rife in India, for example in the State of Punjab; there was indisputable evidence that police there had been cremating extrajudicially executed people as "unidentified bodies", and yet the National Commission for Human Rights had been impeded repeatedly from investigating, and civilian human-rights activists had been routinely harassed, detained, tortured, and implicated for crimes they had not committed. The Subcommission must investigate these practices in India and promote the work and protection of human-rights defenders around the world.
NATHALIE RUSSO, of North South XXI, said that they thanked the members of the Subcommission that had voted in favour of the resolution on Mexico. They were extremely concerned about the large numbers of political prisoners in Mexico and the general situation of repression there. In Chiapas, arrests and illegal detention continued, and torture was practically a routine feature of detention in the country; this was taking place in an increasingly militarized context. For virtually twenty years there had been states of emergency in Sri Lanka that had permitted gross and massive violations of human rights by the State. For decades no conviction had been passed on the Sri Lankan army perpetrators of extra-judicial executions; though the only case where there had been convictions had been used to boost the failing human rights image of the Sri Lankan Government. The Subcommission and the High Commissioner for Human Rights was requested to appoint a Commission to investigate the illegal burial of several hundred bodies in Jafna Peninsula. The Tamil people on the island of Sri Lanka could not rely on the administration of justice in the face of gross violations of human rights by the State. The human rights violations in Sri Lanka were concurrently war crimes since there was a war in Sri Lanka, and the country was party to the Geneva Conventions. The Subcommission was urged to take action regarding the Emergency Regulations in Sri Lanka that permitted the flagrant violations of human rights of the Tamil people.
GHENNETE GIRMA, of the African Association of Education for Development, said that in Djibouti members of an Afar organization, who lived as political refugees in Ethiopia and were extradited despite their refugee status, were still in prison after being put there last September; the only person released among the 23 was a woman who was pregnant and the mother of three small children; the prison conditions were difficult and there often were riots; one detainee already had died; others needed medical help. In Ethiopia, a human-rights defender and member of the legal department of the Ethiopian Human Rights Council, Tesfaye Tadesse, was killed on the streets of Addis Ababa on 7 June, just as Assefa Maru, a human-rights activist, had been killed previously; others were imprisoned and tortured in the country, and journalists were languishing in jail although the press was supposed to be free. There were many disappearances. In Eritrea, 21 disabled persons had been executed on 11 July 1994; they were ex-fighters kept in a camp about 30 kilometres from Asmara and had organized a demonstration; the Eritrean Human Rights Organization had published a list of 37 people missing since 1996; there also had been assassinations and kidnappings of Eritreans in Ethiopia. United Nations organizations and officials should investigate the situations in Eritrea and Ethiopia.
JACQUES VITTORI, of Pax Christi International, said in several Latin countries, society had watched with approval as bold small judges embarked on 'clean hands operations' and all sorts of eminent people had lost their immunity - which was positive. Tunisia which was previously exemplary in many aspects of the law, was now seeing power increasingly concentrated in the hands of one man. The situation was much worse in countries where the authorities established themselves in the sanctuary of usurped national sovereignty. Amnesty could be a necessary element for the conclusion of bloody conflicts; a State could accord amnesty for crimes committed against it, but not for violations of the civil rights of its citizens. The Supreme Court of Argentina had violated international conventions ratified by Argentina by terminating the investigations on the disappearance of 30,000 people under the dictatorship. In principal, experts were independent, and their loyalty to their country should not prevent them from covering up violations of human rights in their countries, and this was why the Commission had asked them to refrain from speaking when their own countries were being examined. Pax Christi welcomed the establishment of the International Criminal Court, but was surprised that the world's policeman had removed itself and its citizens from the jurisdiction of the court.
LAURENCE FAYOLLE, of the International Prison Observatory, said capital punishment was still applied to minors in Iran, Nigeria, Saudi Arabia, the United States, Pakistan, and Yemen; some 11 persons had been executed in the United States since 1985 who were minors at the time their crimes were committed; in Texas, a minimum age of 11 was allowed for sentencing of persons to death; in California the minimum had been lowered to 14; in many countries, the minimum age was 7, such as South Africa, Bangladesh, certain states of the U.S., India, Ireland, Lebanon, and Pakistan. In Japan there was a major increase of violence among children. Thousands of children were imprisoned around the world awaiting judgement or following conviction; some were very young. Many countries allowed holding of children in closed prisons, while others detained children when they had not committed crimes but for "protection"; minors in Bangladesh and Pakistan were detained because they had been raped or kidnapped; "uncontrollable" children were often detained -- there was a major risk of arbitrariness in these detentions; some children even were detained as "political prisoners". It was unacceptable that so many countries continued with systems of unfair and arbitrary detention of children.
ISMET BERDYNAJ, of the International Federation of Human Rights (FIDH), said that his organization hoped that the Commission on Human Rights would consider and adopt the draft convention on the protection of all persons against enforced or involuntary disappearances as soon as possible. FIDH and its Peruvian affiliate were concerned about a number of measures in Peru that did not contribute to the legal protection of Peruvian citizens, and expressed concern regarding conditions of imprisonment in the country. FIDH and its Syrian affiliate hoped that the recent releases of political prisoners and prisoners of conscience in Syria were the first step towards a real respect for human rights, though there were still at least 2,000 Syrian citizens who were arbitrarily detained, and an undetermined number of Lebanese. The organization was also concerned at the threat that was developing in Jordan regarding the right to freedom of opinion and expression; contained in the provisions of the bill introduced in the Jordanian Parliament in June 1998. The Good Friday Agreement that arose from political negotiations in Northern Ireland was also welcomed. If a lasting peace were to be secured, it was crucial that the human rights aspects of the Agreement were implemented fully and speedily; the British Government was urged, among other things, to act on the recommendations of the Special Rapporteur.
JULIEN REINHARD, of Inter-Parliamentary Union, said members of parliaments often ran the risk of human-rights abuses and of being prosecuted under charges such as defamation and sedition; for example, a prominent opposition member of the Malaysian Parliament, Lim Guan Eng, had publicly criticized the Attorney General of applying double standards in a statutory rape case against the former Chief Minister of Malakka; the Attorney General decided not to prosecute, claiming insufficient evidence; charges were brought in 1995 against Lim Guan Eng and in April of 1997 he was found guilty under the Malaysian Sedition Act of promoting "disaffection with the administration of justice in Malaysia" and with "maliciously printing false information" and was fined; when he appealed the judgement, the Court of Appeal gave him a three-year sentence; if convicted on appeal by the Federal Court, he would lose his parliamentary mandate. Parliamentarians had a special responsibility to safeguard human rights and freedoms and must therefore concern themselves with alleged violations of those rights whatever branch of Government was implicated. This case was among more than a thousand examined by the Committee on the Human Rights of Parliamentarians since 1977; the positions taken by the Committee and IPU were summarized in a document available to the Subcommission.
SOLI J. SORABJEE, Subcommission expert, said that running a prison was essentially a Government function. The problem was not of incarceration; the question was to ensure that the human rights of prisoners were protected, and that prisoners were rehabilitated. This was a Governmental function that could not be delegated. Unless the writ of habeas corpus was expanded it would have very little value; it had to be expanded so that a judge and a court could review the legality of a detention on merits. Some Governments did not respect judicial orders when persons had been ordered to be released; failure of Governments to release prisoners when a Court had so ordered should be regarded as a crime.
LAZZARO PARY, of Indian Movement "Tupaj Amaru", said justice was always in the hands of the rich and of the rich countries; for the poor, for farmers, for indigenous peoples, there was no justice; in countries such as Bolivia, Colombia, and Chile, there was a constant deterioration of human rights; Peru appeared to be the country with the greatest number of complaints on human rights before the Inter-American Commission on Human Rights; it claimed problems of national security, and military courts were again trying matters that belonged before civil courts. Behind everything one always found discrimination against indigenous peoples; lack of solutions to serious poverty meant 60 per cent of Peruvians lived below the poverty line and lacked basic education and health services. The essence of habaes corpus was officially guaranteed, but the provisions generally were violated in the case of political prisoners, who generally were incarcerated without trial, often at prisons at over 4,000 metres in altitude, where they suffered torture in the form of cold and hunger, or in naval prisons where they were held in dark cells of two by three metres and described as "tombs for living human beings". The Subcommission must urge the Peruvian Government to free Victor Polay Campos; it must exhort the Bolivian Government to cease violations against coca growers and indigenous peoples; it must call on the United States to release Leonard Pelletier, who had served an unfair sentence for 22 years for defending indigenous peoples.
HR/SC/98/25
20 August 1998
Subcommission Continues Debate on Administration of Justice
The Subcommission on Prevention of Discrimination and Protection of Minorities requested this afternoon authorization to create a "Social Forum" to meet during the Subcommission's annual sessions and exchange information on disparities in income distribution and global poverty; to analyse violations of economic, social and cultural rights; and to discuss and propose legal standards and guidelines on these subjects. It also sought authorization from its parent body, the Commission on Human Rights, to appoint a Subcommission expert as Special Rapporteur on economic, social and cultural rights to coordinate the work of the Social Forum.
Acting on other resolutions under the rubric of economic, social and cultural rights, the panel asked two of its members to compile studies on the right to education and on "better reflection" of human rights standards in international and regional trade, investment and financial policies.
The Subcommission further recommended to the Commission on Human Rights adoption of a draft decision endorsing establishment by the Subcommission of follow-up machinery on the question of impunity for violators of economic, social and cultural rights.
Having completed action on resolutions and decisions left over from this morning and Wednesday afternoon, the Subcommission carried on with its debate on matters related to the administration of justice, hearing statements from a series of non-governmental organizations (NGOs).
The following NGOs spoke: European Union of Public Relations; World Federation of Trade Unions; Liberation; North-South XXI; African Association of Education for Development; Pax Christi International; International Prison Observatory; International Federation of Human Rights; Inter-Parliamentary Union; and Indian Movement "Tupaj Amaru".
Also participating in the debate were Subcommission experts Francoise Jane Hampson and Soli J. Sorabjee.
The Subcommission will reconvene at 10 a.m. Friday, 21 July, to continue discussion of issues related to the administration of justice.
Action Taken on Draft Resolutions, Statements
HALIMA EMBAREK WARZAZI, Subcommission expert, said she had not had the time to study some of the documents that the Special Rapporteurs had put before them, and she now wished to make a comment on the right to education; when she had suggested it last year, she had not been thinking of the right to education in human rights. A compromise solution had been put forward following some discussion, but she did not agree with the Special Rapporteur when he said that the right to education went hand in hand with human rights education. Here they were trying to ensure that everyone had the right to know what their rights were, and how they could obtain those rights. Once they gained that knowledge, they could be awakened by a campaign on their rights and the rights of those they lived with. Therefore, unlike the Special Rapporteur, she believed that you could not have human rights triumphing without education.
Mrs. Warzazi said civil society and the international community had to condemn any policy that had as its aim suppression of social and educational programmes. A conference in Washington last July had noted that 130 million children had no access to primary education. Although some people thought that this was a social right, the implications of the right to education made it a political right. She thanked the Chairman for underlining the problems of young girls condemned to ignorance. Any study on the right to education had to have a chapter on the right to education of the girl child.
ASBJORN EIDE, Subcommission expert, said he agreed with Mrs. Warzazi; he also underlined the importance of the Convention on the Rights of the Child, whose article 9 had the best definition he knew of the right to education. He further agreed that it was extremely important to include in the study the effects of education or denial of it on the development of the girl child.
FAN GUOXIANG, Subcommission expert, said that he entirely supported the draft. Children's education was particularly important. There was a Chinese saying: "children were the future of the country and the world". How the next century would develop depended on children, and therefore education should be
continuously strengthened.
In a resolution (E/CN.4/Sub.2/1998/L.21) on the realization of the right to education, including education in human rights, adopted by consensus without vote, the Subcommission endorsed fully the conclusions of the working paper of its expert Mustapha Mehedi and requested him to prepare, without financial obligations, a more detailed working paper on the right to education, and particularly human-rights education, for submission to the Subcommission at its fifty-first session, the purpose of the paper being to explain the content of the right to education, taking account, in particular, of its social dimension and the freedoms it included and of its dual civil and political rights and economic, social and cultural rights character, and to identify ways and means of promoting human-rights education.
MUSTAPHA MEHEDI, Subcommission expert, said that he supported Mrs. Warzazi's proposal. The fact that they had been able to add the right to education in human rights which was really a product of the right to education was positive. This working paper was not a final document; it was a rough draft, a listing of those aspects which pertained to the issue. He felt that the universality and indivisibility of human rights were features that were now recognised in peoples' minds, perhaps the cross-sectorality of this right needed to be examined. This was not a report, and he was still far from being a Special Rapporteur; all he had tried to do was make some recommendations. He would take account of what had been said about the role of parents, and the girl child. Nevertheless, a general study on the right to education was closely tied to the right to human rights education. It was important to show how you could construct a true human rights culture. He would have wished, with the agreement of his co-sponsors, to add two paragraphs that were missing from this draft. The educational rights, not the right to education itself, had to fit in, for example with the cultural right. It was important to ensure cooperation with the Special Rapporteur appointed by the Commission on Human Rights and other organs. It was important to keep the wording 'particularly in the field of human rights' as it was a corroboratory of the right to education.
In a resolution (E/CN.4/Sub.2/1998/L.22) on human rights as the primary objective of trade, investment and financial policy, adopted without a vote, the Subcommission emphasized that the realization of human rights and fundamental freedoms was the first and most fundamental responsibility and objective of States in all areas of governance and development; urged United Nations agencies, including the International Monetary Fund and the World Bank, to at all times be conscious of and respect the human-rights obligations of the countries with which they worked; urged member States of the Organization for Economic Cooperation and Development to review the draft text of the Multilateral Agreement on Investment to ensure that all its provisions were fully consistent with their human-rights obligations, and to keep these obligations in mind during any future negotiations on the agreement; decided to entrust a Subcommission expert with the task of preparing, without financial
implications, a working paper on the ways and means by which the primacy of human-rights norms and standards could be better reflected in, and could better inform, international and regional trade, investment and financial policies, agreements and practices, and how the United Nations human-rights bodies and mechanisms could play a central role in this regard; and requested this expert to include in this paper an analysis of the text of the Multilateral Agreement on Investment from a human-rights perspective, and to consider ways to ensure that future negotiations on the agreement or analogous agreements of measures took place within a human-rights framework.
In a measure (E/CN.4/Sub.2/1998/L.23) on the question of the impunity of perpetrators of violations of economic, social and cultural rights, adopted without a vote, the Subcommission decided to recommend to the Commission on Human Rights adoption of a draft decision endorsing establishment by the Subcommission of follow-up machinery on the question of such impunity.
DAVID WEISSBRODT, Subcommission expert, said that he had reservations about the last paragraph, which did not make clear what the Commission had to do with the resolution. An amendment would make the objectives of the Subcommission clearer.
In a resolution (E/CN.4/Sub.2/1998/L.28) on human rights and income distribution, adopted without a vote, the Subcommission endorsed the conclusions of the final report on the subject and especially the recommendation for establishment of a “Social Forum” within the Subcommission; requested the High Commissioner for Human Rights to publish, in a joint publication in the official languages of the United Nations, the preparatory document on the relationship between human rights and income distribution prepared by Asbjorn Eide and José Bengoa's preliminarily, second, and final reports, and addendum, under the title: Income Distribution and Human Rights; and decided to submit to the Commission on Human Rights for adoption a draft resolution that would establish within the Subcommission a forum on economic, social and cultural rights, to be called the Social Forum, to meet during Subcommission annual sessions, with the objectives of exchanging information; following up on the issue of income distribution; following up on situations of poverty and destitution in the world; analysing violations of economic, social and cultural rights and discussing guidelines on these matters; and proposing legal standards and initiatives, guidelines, and other recommendations; requested the High Commissioner for Human Rights to send out invitations to the Forum; and decided that the Social Forum could request the Subcommission to name a Special Rapporteur for economic, social and cultural rights.
VLADIMIR KARTASHKIN, Subcommission expert, said the Social Forum was to meet during sessions of the Subcommission for two or three days. Within the Subcommission or as a separate gathering? Would there be separate meetings or simultaneous meetings? If separate and simultaneous, how could experts
participate, especially given their heavy schedule?
MR. FAN said he was glad that the right to economic and social rights had been given more importance in the Subcommission. Some colleagues had tried to find ways to put more importance on economic, social and cultural rights, and the resolution showed that Mr. Bengoa and the other sponsors also attached great importance to this balance. He agreed that the idea of a Social Forum did not fall within the purview of the Subcommission as the participants to the Social Forum would be invited by the High Commissioner, not by the Subcommission. The Social Forum was very big as a concept, and would not be as restrictive in scope as the Working Group - it could be bigger than the Subcommission, or even than the Commission on Human Rights- so the problem was raised: would the question of economic, social and cultural rights still be discussed in the Subcommission? Economic and social rights should also be regarded as a collective right; the right to development was not a right of individuals. As far as the right to development was concerned, the State had the main responsibility; on the other hand, the international community also had a responsibility. However, many developed countries had failed to fulfil their commitments in the field of the right to development, and many of the most developed countries were not that generous. So where was the basis? Did the responsibility lie with the State, the individual or the international community? These were major issues, and he wondered whether they could be resolved within the Social Forum. With regard to the draft resolution, the name “Social Forum” was quite ambiguous - and he had reservations on the whole of paragraph 4.
JOSE BENGOA, Subcommission expert, said that the Social Forum would be inside the Subcommission. The Social Forum had to meet during the time available to the Subcommission since the Commission on Human Rights had refused the request to extend the time available to the Subcommission. Perhaps once the Commission on Human Rights had been able to study the proposal, they could raise again the question of extra time. Mr. Fan had attached great importance to economic, social and cultural rights; he had attended many meeting in which these ideas were discussed, and the Social Forum had been raised as an idea and discussed - this had led him to make this proposal.
MIGUEL ALFONSO MARTINEZ, Subcommission expert, said the idea was to have the Forum meet within the Subcommission; of course it depended on the time available for the Subcommission's work; he had the impression from the Commission's guidance that the forum had to focus on matters where the Commission thought the Subcommission could provide guidance. He did not think two days for the forum would be sufficient -- at least three days should be set aside. Or perhaps the Subcommission should recommend strongly to the Commission that its time in Geneva be lengthened.
YOZO YOKOTA, alternate expert, said that initially he felt that they had to be careful not to duplicate the efforts of the Economic and Social Committee. He though that it was very important for the Subcommission to deal with the aspect of globalization, income distribution and extreme poverty and the effect they had on the enjoyment of economic, social and cultural rights. The Forum should focus on this so that it would not duplicate the work of ECOSOC.
MR. WEISSBRODT said he had the impression the Subcommission could create the Social Forum on its own, without seeking Commission permission; it could be described simply as a new formulation of the Subcommission agenda; that way it might be more achievable and less likely to be deconstructed by "higher bodies"; he would suggest changing the resolution to reflect that approach.
MR. FAN said that before making such a big step, it would be better to consult the Commission on Human Rights.
Administration of Justice
NAZIMA MUNSHI, of the European Union for Public Relations, said that in conventional parlance, the terms "administration of justice" and "detainees" suggested a relationship between the legal and institutional apparatus of a State and its citizens. In today's world, there was a different form of detention and a different form of administration of justice that needed to occupy our attention much more. States were answerable, but what about non-state actors who had increasingly become prosecutor, judge, jury, jailor and executioner. Hostage taking was the terrorist's way of administering justice, and these detainees were detainees not of law, but of causes and ideologies without any legal channel through which to plead their cause. The real problem facing the international community was how to protect the rights of these detainees who had committed no crime. It was time for the international community to develop similar laws for terrorist groups to follow with regard to the administration of justice and rights of detainees as it had for States; the actions of terrorist groups needed to be monitored as much as the actions of states. It was time to move away from comfortable definitions of human rights, and for the Subcommission to recognise who were the perpetrators of violence, and who were the victims: the States that were castigated were increasingly becoming victims of terrorists who knew no respect for human rights.
FRANCOISE JANE HAMPSON, Subcommission expert, said she could not see how the relationship between prisons and decisions of courts could be neglected; she did not see how State authorities could be responsible for sentencing convicted criminals and responsible for releasing them, but not for what happened in between, as would seem to be the case with privatization of prisons; those who delegated authority to private prisons remained responsible for what those running privatized prisons did; those incarcerated had to be protected; the State still had the same obligations; what mattered was not whether prisons were privatized or not, but that prisons remained the responsibility of the State and the effective preventive regulation of what happened to prisoners. She urged great care in how the term habeas corpus was used; the label must not be confused with the substance; there must be no shortcuts; what was needed was judicial control of procedural and substantive lawfulness of detention. The draft convention on disappearances deserved support and priority consideration by the Commission on Human Rights; nothing seemed to be worse than the worry, loss, and anxiety suffered by the families of "disappeared" persons; they were trapped; they were in a living hell that could not change until they got information; they could not put their lives back together and move on; it was not enough to condemn the practice of disappearances after the event; effective measures must be taken to put in place systems of investigation and redress to prevent deprivations of liberty from becoming disappearances.
GENEI SHIMOJI, of the World Federation of Trade Unions, said that despite the United Nations' Programme on Crime Prevention and Criminal Justice, many States carried out pre-trial detentions; this practice was more common in States that discriminated on the base of religion or belief. There was the resurgence of intolerance based on race, religion, ethnicity or creed, and this was alarming at a time when the expansion of education and communications should have increased appreciation of different cultures; this development was the gravest threat for the human rights of large sections of society. Ethnic cleansing took its cues from policies of intolerance, and the former Yugoslavia was a classic example. Even countries that had been independent for decades, like Pakistan, were not taking adequate action to curb this phenomenon. The mushrooming of groups around the world practising fundamentalist ideology and supported by certain nation States was becoming responsible for whole scale human rights abuses. This phenomenon had multiple effects as those who were persecuted in some parts of the world sought their revenge in other countries. Racial and religious prejudice was not the prerogative of backward countries. To achieve equal treatment for all people around the world, the international community needed to educate those Governments which had allowed discrimination to spread.
RACHEL GARSTANG, of Liberation, said that after removal of the Indonesian dictator Suharto, thousands of people, mostly women, had come forward in Aceh to testify about murderous abuses that had occurred during military operations in the region; so many men had disappeared that some villages were called "widows' villages"; at least ten mass graves had been identified; over the last year there had been many disappearances; withdrawal of combat troops from the area now might only allow the perpetrators of those atrocities to avoid identification by local residents and prevent their indictment before the courts; the United Nations must provide support to the people of Aceh and the Special Rapporteur on Extra-Judicial Executions should visit as soon as possible. Interference with the work of human rights defenders was rife in India, for example in the State of Punjab; there was indisputable evidence that police there had been cremating extrajudicially executed people as "unidentified bodies", and yet the National Commission for Human Rights had been impeded repeatedly from investigating, and civilian human-rights activists had been routinely harassed, detained, tortured, and implicated for crimes they had not committed. The Subcommission must investigate these practices in India and promote the work and protection of human-rights defenders around the world.
NATHALIE RUSSO, of North South XXI, said that they thanked the members of the Subcommission that had voted in favour of the resolution on Mexico. They were extremely concerned about the large numbers of political prisoners in Mexico and the general situation of repression there. In Chiapas, arrests and illegal detention continued, and torture was practically a routine feature of detention in the country; this was taking place in an increasingly militarized context. For virtually twenty years there had been states of emergency in Sri Lanka that had permitted gross and massive violations of human rights by the State. For decades no conviction had been passed on the Sri Lankan army perpetrators of extra-judicial executions; though the only case where there had been convictions had been used to boost the failing human rights image of the Sri Lankan Government. The Subcommission and the High Commissioner for Human Rights was requested to appoint a Commission to investigate the illegal burial of several hundred bodies in Jafna Peninsula. The Tamil people on the island of Sri Lanka could not rely on the administration of justice in the face of gross violations of human rights by the State. The human rights violations in Sri Lanka were concurrently war crimes since there was a war in Sri Lanka, and the country was party to the Geneva Conventions. The Subcommission was urged to take action regarding the Emergency Regulations in Sri Lanka that permitted the flagrant violations of human rights of the Tamil people.
GHENNETE GIRMA, of the African Association of Education for Development, said that in Djibouti members of an Afar organization, who lived as political refugees in Ethiopia and were extradited despite their refugee status, were still in prison after being put there last September; the only person released among the 23 was a woman who was pregnant and the mother of three small children; the prison conditions were difficult and there often were riots; one detainee already had died; others needed medical help. In Ethiopia, a human-rights defender and member of the legal department of the Ethiopian Human Rights Council, Tesfaye Tadesse, was killed on the streets of Addis Ababa on 7 June, just as Assefa Maru, a human-rights activist, had been killed previously; others were imprisoned and tortured in the country, and journalists were languishing in jail although the press was supposed to be free. There were many disappearances. In Eritrea, 21 disabled persons had been executed on 11 July 1994; they were ex-fighters kept in a camp about 30 kilometres from Asmara and had organized a demonstration; the Eritrean Human Rights Organization had published a list of 37 people missing since 1996; there also had been assassinations and kidnappings of Eritreans in Ethiopia. United Nations organizations and officials should investigate the situations in Eritrea and Ethiopia.
JACQUES VITTORI, of Pax Christi International, said in several Latin countries, society had watched with approval as bold small judges embarked on 'clean hands operations' and all sorts of eminent people had lost their immunity - which was positive. Tunisia which was previously exemplary in many aspects of the law, was now seeing power increasingly concentrated in the hands of one man. The situation was much worse in countries where the authorities established themselves in the sanctuary of usurped national sovereignty. Amnesty could be a necessary element for the conclusion of bloody conflicts; a State could accord amnesty for crimes committed against it, but not for violations of the civil rights of its citizens. The Supreme Court of Argentina had violated international conventions ratified by Argentina by terminating the investigations on the disappearance of 30,000 people under the dictatorship. In principal, experts were independent, and their loyalty to their country should not prevent them from covering up violations of human rights in their countries, and this was why the Commission had asked them to refrain from speaking when their own countries were being examined. Pax Christi welcomed the establishment of the International Criminal Court, but was surprised that the world's policeman had removed itself and its citizens from the jurisdiction of the court.
LAURENCE FAYOLLE, of the International Prison Observatory, said capital punishment was still applied to minors in Iran, Nigeria, Saudi Arabia, the United States, Pakistan, and Yemen; some 11 persons had been executed in the United States since 1985 who were minors at the time their crimes were committed; in Texas, a minimum age of 11 was allowed for sentencing of persons to death; in California the minimum had been lowered to 14; in many countries, the minimum age was 7, such as South Africa, Bangladesh, certain states of the U.S., India, Ireland, Lebanon, and Pakistan. In Japan there was a major increase of violence among children. Thousands of children were imprisoned around the world awaiting judgement or following conviction; some were very young. Many countries allowed holding of children in closed prisons, while others detained children when they had not committed crimes but for "protection"; minors in Bangladesh and Pakistan were detained because they had been raped or kidnapped; "uncontrollable" children were often detained -- there was a major risk of arbitrariness in these detentions; some children even were detained as "political prisoners". It was unacceptable that so many countries continued with systems of unfair and arbitrary detention of children.
ISMET BERDYNAJ, of the International Federation of Human Rights (FIDH), said that his organization hoped that the Commission on Human Rights would consider and adopt the draft convention on the protection of all persons against enforced or involuntary disappearances as soon as possible. FIDH and its Peruvian affiliate were concerned about a number of measures in Peru that did not contribute to the legal protection of Peruvian citizens, and expressed concern regarding conditions of imprisonment in the country. FIDH and its Syrian affiliate hoped that the recent releases of political prisoners and prisoners of conscience in Syria were the first step towards a real respect for human rights, though there were still at least 2,000 Syrian citizens who were arbitrarily detained, and an undetermined number of Lebanese. The organization was also concerned at the threat that was developing in Jordan regarding the right to freedom of opinion and expression; contained in the provisions of the bill introduced in the Jordanian Parliament in June 1998. The Good Friday Agreement that arose from political negotiations in Northern Ireland was also welcomed. If a lasting peace were to be secured, it was crucial that the human rights aspects of the Agreement were implemented fully and speedily; the British Government was urged, among other things, to act on the recommendations of the Special Rapporteur.
JULIEN REINHARD, of Inter-Parliamentary Union, said members of parliaments often ran the risk of human-rights abuses and of being prosecuted under charges such as defamation and sedition; for example, a prominent opposition member of the Malaysian Parliament, Lim Guan Eng, had publicly criticized the Attorney General of applying double standards in a statutory rape case against the former Chief Minister of Malakka; the Attorney General decided not to prosecute, claiming insufficient evidence; charges were brought in 1995 against Lim Guan Eng and in April of 1997 he was found guilty under the Malaysian Sedition Act of promoting "disaffection with the administration of justice in Malaysia" and with "maliciously printing false information" and was fined; when he appealed the judgement, the Court of Appeal gave him a three-year sentence; if convicted on appeal by the Federal Court, he would lose his parliamentary mandate. Parliamentarians had a special responsibility to safeguard human rights and freedoms and must therefore concern themselves with alleged violations of those rights whatever branch of Government was implicated. This case was among more than a thousand examined by the Committee on the Human Rights of Parliamentarians since 1977; the positions taken by the Committee and IPU were summarized in a document available to the Subcommission.
SOLI J. SORABJEE, Subcommission expert, said that running a prison was essentially a Government function. The problem was not of incarceration; the question was to ensure that the human rights of prisoners were protected, and that prisoners were rehabilitated. This was a Governmental function that could not be delegated. Unless the writ of habeas corpus was expanded it would have very little value; it had to be expanded so that a judge and a court could review the legality of a detention on merits. Some Governments did not respect judicial orders when persons had been ordered to be released; failure of Governments to release prisoners when a Court had so ordered should be regarded as a crime.
LAZZARO PARY, of Indian Movement "Tupaj Amaru", said justice was always in the hands of the rich and of the rich countries; for the poor, for farmers, for indigenous peoples, there was no justice; in countries such as Bolivia, Colombia, and Chile, there was a constant deterioration of human rights; Peru appeared to be the country with the greatest number of complaints on human rights before the Inter-American Commission on Human Rights; it claimed problems of national security, and military courts were again trying matters that belonged before civil courts. Behind everything one always found discrimination against indigenous peoples; lack of solutions to serious poverty meant 60 per cent of Peruvians lived below the poverty line and lacked basic education and health services. The essence of habaes corpus was officially guaranteed, but the provisions generally were violated in the case of political prisoners, who generally were incarcerated without trial, often at prisons at over 4,000 metres in altitude, where they suffered torture in the form of cold and hunger, or in naval prisons where they were held in dark cells of two by three metres and described as "tombs for living human beings". The Subcommission must urge the Peruvian Government to free Victor Polay Campos; it must exhort the Bolivian Government to cease violations against coca growers and indigenous peoples; it must call on the United States to release Leonard Pelletier, who had served an unfair sentence for 22 years for defending indigenous peoples.