Human Rights Council discusses a democratic and equitable international order and unilateral coercive measures

MORNING

GENEVA (13 September 2016) - The Human Rights Council this morning held a clustered interactive dialogue with the Independent Expert on a democratic and equitable international order and the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights. 
 
Alfred-Maurice De Zayas, Independent Expert on the promotion of a democratic and equitable international order, said that he had focused on the effects of trade on the international order, in particular on human rights.  He stressed that the current trend to privatize law at the expense of public institutions was an assault on the rule of law.  That trend had to be stopped and reversed because private arbitral tribunals undermined the rule of law and the very fabric of the social contract.  Mr. de Zayas deplored the paradox that the same States which had ratified human rights treaties had also entered into commercial treaties which delayed, undermined or made impossible the fulfilment of human rights treaty obligations. 
 
Idriss Jazairy, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, said his report reviewed and assessed various mechanisms available to address redress for victims of unilateral coercive measures, enumerating eight concluding observations or recommendations.  Those included the observation that States whose populations were affected by unilateral coercive measures should consider the jurisdictional options available to them by virtue of treaties in force.  He presented his report on his visit to Sudan.
 
Sudan spoke as the concerned country.
 
During the ensuing discussion on the promotion of a democratic and equitable international order, speakers welcomed the Independent Expert’s proposal for the adoption of a binding international treaty on social responsibility, as well as the imposition of a moratorium on harmful free trade treaties.  Some warned against the aggravating trade rulings against developing countries, which prevented them from adopting adequate policies in the fields of health, education, labour and climate change.  The current trade dispute system represented an additional mechanism for the violation of human rights.  
 
During the discussion on coercive measures, delegations suggested that a fair and impartial investigation on the impact of such measures in the affected countries by the United Nations needed to be conducted with a view for financial compensation.  Several delegations said that the primary victims of unilateral coercive measures were the most vulnerable.  The Special Rapporteur was requested to elaborate on the development of a mechanism which would provide a forum through which individuals could bring claims against targeting States or international organizations.  Some observed that it was far more useful to delimit and target the imposition of unilateral coercive measures than focus on remedies or redress. 

Speaking in the discussion were Pakistan on behalf of the Organization of Islamic Cooperation, Sudan on behalf of the Arab Group, South Africa on behalf of the African Group, Iran on behalf of the Non-Aligned Movement, Maldives, Ecuador, Libya, Fiji, Pakistan, Cuba, Sierra Leone, Russian Federation, Syria, Algeria, Venezuela, India, Morocco, Egypt, China, United Arab Emirates, Belarus, Iran, Nigeria, Bolivia, Bangladesh, Tunisia, Namibia, Ghana and Nicaragua. 
 
The following non-governmental organizations took the floor: American Association of Jurists, Centre Europe-Tiers Monde, International Islamic Federation of Student Organizations, FIAN International, Alliance Defending Freedom, International Association of Democratic Lawyers, Arab Commission for Human Rights, International-Lawyers.org, International Organization for the Elimination of All Forms of Racial Discrimination, Khiam Rehabilitation Centre for Victims of Torture, Organization for Defending Victims of Violence, Jssor Youth Organization, Conseil international pour le soutien à des procès équitables et aux Droits de l’Homme, International Muslim Women’s Union, and Fundación Latinoamericana por los Derechos Humanos y el Desarollo Social.
 
This afternoon, the Human Rights Council will hold a clustered interactive dialogue with the Special Rapporteur on the right to safe drinking water and sanitation, and with the Working Group on Arbitrary Detention.
 
Documents
 
The Council has before it the report of the Independent Expert on the promotion of a democratic and equitable international order A/HRC/33/40
 
It has before it the report of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights
A/HRC/33/48
 
It also has before it the report of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights on his mission to the Sudan A/HRC/33/48/Add.1
 
Presentation of Reports on a Democratic and Equitable International Order and on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights,
 
ALFRED-MAURICE DE ZAYAS, Independent Expert on the promotion of a democratic and equitable international order, noted that the lack of follow-up to Special Procedures mandate holders’ reports and the chronic non-implementation of recommendations had been a disappointment to victims and it had put the credibility of the system into question.  States had to decide whether the mandates that they had created deserved closer attention and whether the promise of Special Procedures would be supported with sufficient resources.  States that had been found at fault with respect to the realization of civil, cultural, economic, political and social rights should demonstrate their commitment to the joint venture by implementing the recommendations of Rapporteurs and working groups, even if they still entertained reservations about them.  He reminded that the rule of law suffered when States continued to ignore human rights treaty obligations with impunity, and that the international order was well served when States decided to advance the rule of law through the enforcement of Human Rights Council commitments and through the strengthening and expansion of the regional court systems. 
 
In his report, Mr. de Zayas said he focused on the effects of trade on the international order, in particular on human rights.  He stressed that the current trend to privatize law at the expense of public institutions was an assault on the rule of law.  That trend had to be stopped and reversed because private arbitral tribunals undermined the rule of law and the very fabric of the social contract.  Mr. de Zayas deplored the paradox that the same States which had ratified human rights treaties had also entered into commercial treaties which delayed, undermined or made impossible the fulfilment of human rights treaty obligations.  He noted that saying “no” to the Trans-Pacific Partnership, the Transatlantic Trade and Investment Partnership, the Comprehensive Economic and Trade Agreement and the Trade in Services Agreement would not have apocalyptic consequences, bring world trade to a grinding halt or make foreign direct investment stop flowing.  Those treaties were fundamentally flawed and had to be revised so that trade benefitted all in society, not only super-rich investors and transnational corporations.  There was no compelling need for mega-treaties which had engendered advantages for only a few and disadvantages for many. 
 
An international order that was equitable and democratic required States to be committed to the rule of law, non-discrimination and public accountability.  It should not be undermined by investors, speculators or transnational enterprises avid for short-term profit to establish a new world order driven by market fundamentalism, natural resources exploitation and civil society exclusion.  It was the responsibility of governments, parliaments and courts to act in the public interest, he concluded.
 
IDRISS JAZAIRY, Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights, introducing his annual thematic report, said only 13 countries had responded effectively to his request for information on unilateral coercive measures.  He reiterated his recommendation for the setting up of a consolidated central register at the level of the Security Council or of the United Nations Secretariat to recapitulate the list of all unilateral coercive measures in force.  Such a register should be kept according to the standards currently applied for Security Council sanctions.  His report reviewed and assessed various mechanisms available to address redress for victims of unilateral coercive measures, enumerating eight concluding observations or recommendations.  Those included the observation that States whose populations were affected by unilateral coercive measures should consider the jurisdictional options available to them by virtue of treaties in force.  Developing countries interpreted the language of the Vienna Declaration and Programme of Action Declaration and the 2030 Agenda for Sustainable Development as having the same connotations as the relevant General Assembly and Human Rights Council resolutions, which asserted that all unilateral coercive measures were per se illegal. 
 
Turning to his report on his visit to Sudan, he said he had reviewed the
human rights impact of unilateral coercive measures, whose sources were mainly the United States and Canada but had come to be applied by the European Union and by a number of financial institutions worldwide.  De facto global and comprehensive unilateral coercive measures adversely affected large population segments, in particular women, children and the sick.  Humanitarian exemptions did not work because financial transfers were suspended.  All stakeholders agreed on the ineffectiveness of maintaining the unilateral coercive measures targeting Sudan; there was a mismatch between the sanctions and the current situation in the country.  Impacts of unilateral coercive measures were often in contradiction with their proclaimed aim, and overall they had contributed to widening income inequality and the emergence of a parallel economy.  To end the paradox whereby unilateral coercive measures targeting Sudan were having an egregious impact on the very human rights the measures purported to advance, it was suggested that both source and target countries could reduce the suffering of the population.  “Over-compliance” of stakeholders from third countries should be addressed. 
 
Statement by a Concerned Country
 
Sudan, speaking as a concerned country, thanked the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights for his report, noting that he had met with a wide range of political and civil representatives in the country.  The international sanctions against Sudan had deeply impacted the enjoyment of all human rights, particularly of economic, social and cultural rights, and especially the right to development.  Those sanctions had adversely affected various human needs, such as dealing with environmental and natural disasters, the right to education and learning, and access to medicines.  The performance of the national airline company had declined due to the lack of access to spare parts.  As for the right to development, the housing and electricity sector had seen a hike in prices.  With respect to foreign debt, there was a problem with respect to development programmes, consequently leading to a rise in poverty.  The Government of Sudan thus appealed that the international sanctions be lifted. 
 
 
Clustered Interactive Dialogue
 
Pakistan, speaking on behalf of Organization of Islamic Cooperation, welcomed the proposal for setting up a consolidated register of all unilateral coercive measures, which hampered the efforts of developing countries to implement the 2020 Sustainable Development Agenda.  It welcomed the Independent Expert’s proposal for the adoption of a binding international treaty on social responsibility, as well as the imposition of a moratorium on harmful free trade treaties.  Sudan, speaking on behalf of the Arab Group, condemned the use of unilateral coercive measures and their negative impact on the enjoyment of human rights.  Guidelines and an independent mechanism needed to be set up in order to evaluate such measures.  South Africa, speaking on behalf of the African Group, firmly supported the mandate of the Special Rapporteur on unilateral coercive measures, especially in light of their negative effect on the right to development.  A fair and impartial investigation of the impact of such measures in the affected countries by the United Nations needed to be conducted with a view for financial compensation.  
 
Iran, speaking on behalf of the Non-Aligned Movement, stressed that unilateral coercive measures negatively affected not only the targeted, but also third countries.  They adversely affected the right to life, health and decent standard of living.  It thus called on the Office of the High Commissioner for Human Rights to pay particular attention to the effects of such measures on all human rights.  Maldives underlined the importance of the rule of law and the democratic will of the people in the building of an equitable and democratic international order.  It called on the World Trade Organization to protect small island States from the power of multinational corporations.  Ecuador warned against the aggravating trade rulings against developing countries, which prevented them from adopting adequate policies in the fields of health, education, labour and climate change.  The current trade dispute system represented an additional mechanism for the violation of human rights.   
 
Libya expressed agreement with the Special Rapporteur’s recommendation related to the effects and impact of free trade agreements on health and the environment.  With regard to unilateral coercive measures, redress for victims was an area for the international community to look into.  Fiji welcomed the report on unilateral coercive measures, which infringed on respect for the Charter of the United Nations.  The primary victims of such measures were the most vulnerable, and States needed to refrain from adopting measures which did not comply with international law.  Pakistan said it had always striven to put the human rights of people at the centre of its development strategies and agreements.  Unilateral coercive measures had an adverse impact on the enjoyment of human rights, and the Special Rapporteur was requested to elaborate on the development of a mechanism which would provide a forum through which individuals could bring claims against targeting States or international organizations. 
 
Cuba expressed agreement with the Independent Expert that the international investment regime was not an autonomous legal regime, but should be in step with international charters and treaties.  The Cuban people had suffered a blockade by the United States and knew the damages and harm that unilateral coercive measures brought; the blockade was a primary obstacle to human rights.  Sierra Leone noted that the Independent Expert’s report explored the need to reformulate a human rights-friendly trade framework, adding that in agriculture, policies in the richest countries led to unfair competition that deprived the poorest countries from meeting their human rights obligations.  With regard to the application of unilateral coercive measures, it was far more useful to delimit and target their imposition than focus on remedies or redress, in order to minimise such measures’ effects on the human rights of the innocent.  Russian Federation expressed support for many of the Independent Expert’s conclusions on unilateral coercive measures, as well as expressing interest in the means of legal recourse which he had detailed.  Unilateral restrictions, including under the pretext of alleged non-compliance with human rights, hindered the implementation of development rights.
 
Syria agreed with the Special Rapporteur on the limits of the currently available mechanisms for legal recourse and reparations following the use of unilateral coercive measures.  Those mechanisms had no direct link with the United Nations and the proposal to create another one through a multilateral group was welcome.  Algeria encouraged the possibility of legal recourse and reparations for the victims of unilateral coercive measures.  As for the report of the Independent Expert, it urged countries to stand against the adoption of trade agreements which violated human rights and asked how people could challenge such harmful agreements. 
 
Venezuela shared the Independent Expert’s vision to revise the doctrine of the “Responsibility to Protect” in order to build an international order that was democratic and equitable, and supported the adoption of an internationally binding instrument which would protect human rights from business interests.  It condemned the blockade of Cuba and the imposition of unilateral coercive measures.  India noted that it was an anomaly that organizations such as the World Trade Organization and the International Monetary Fund, and various non-State actors were competing with the United Nations in setting up the global agenda.  Respect for the rule of law and impartial judiciary were the building blocks of a fair and democratic international order.  Morocco agreed with the opinion of the Independent Expert that the good will of the Member States of the World Trade Organization and the development of international solidarity should be a good beginning for the development of an equitable and democratic international order.  
 
Egypt said that unilateral coercive measures were usually illegitimate and mainly targeted developing countries, and urged all States upon which unilateral coercive measures had been imposed to consider jurisdictional options available to them by virtue of treaties in force.  Egypt agreed that it was timely and crucial to reflect on the possible negative impacts of the “regulatory chill” generated by investor-State dispute settlements on the enjoyment of human rights and the realization of the right to development.
 
China said that States should respect each other and engage on an equal footing in order to promote a democratic and equitable international order, including by respecting the principles of the United Nations Charter, respecting cultural diversity and finding effective means to promote and protect human rights.  China was against unilateral coercive measures and urged the Special Rapporteur to continue to focus on the prevention, reduction and remedies of negative effects of unilateral coercive measures on human rights.
 
Remarks by Mandate Holders
 
ALFRED-MAURICE DE ZAYAS, Independent Expert on the promotion of a democratic and equitable international order, on the role of parliaments, stressed the duty of parliaments to exercise their oversight in the ratification process and not to ratify a treaty unless it was democratically negotiated with full inclusion of all stakeholders.  In terms of ensuring compatibility of trade agreements with human rights principles, the Independent Expert spoke of the supremacy clause of the United Nations Charter which provided that it was superior to all other treaties, and if treaties interfered with the exercise of the provisions of the Charter, than they had to be adequately adjusted.  The “regulatory chill” in relation to tax litigation was the subject of the Independent Expert’s report to the General Assembly this year; the report would also address the issue of a binding legal instrument on the responsibility of enterprises, not only civil but also criminal responsibility.  In the same report, the Independent Expert would link the legal responsibility of enterprises with the Rome Statute in cases in which environmental damage by enterprises was extensive.  A binding legal treaty on the responsibilities of businesses should also address the issue of free, prior and informed consent, and should go through a full democratic process in their negotiation.  It was important for the International Court of Justice to pronounce the priority of human rights treaties over commercial treaties and that the international investment regime was not a stand-alone regime.  Equally important was for the dispute experts at the World Trade Organization to mainstream the human rights regime into their decisions.  Integrating a human rights regime into the international investment system was particularly crucial today, and without it, it would not be possible to deliver on the 2030 Agenda for Sustainable Development, the Doha Round of the trade talks, or on the significant reduction of emissions required for the fulfilment of commitments made during the Paris Agreement on climate change.
 
IDRISS JAZAIRY, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, thanked delegations for their support for a register of unilateral coercive measures.  Those measures would also make the present discussion more transparent.  There was no transparency in the discussion of unilateral coercive measures, which would be helpful for the international community.  That was a duty for the source countries, but target countries should also be doing their homework, and it would be helpful for businesses too.  Regarding Sudan, he noted the existence of over-compliance with many companies, which were afraid of fines by the United States, applying stricter sanctions than was expected from them.  He noted that he took the invitation to visit Syria very seriously.  On what the international community could do to find remedies, he said either it could use existing remedies or create new ones, two options which were not exclusive.  On the question of article 21 of the General Agreement on Tariffs and Trade, he noted its provision that the benefits of the World Trade Organization could be suspended but in very limited circumstances, using the example of a very small developing country seeking the dispute resolution mechanism in regard to a major developed country.  On universal jurisdiction, he noted that some States had tried to apply it.  The source countries needed to be involved in a friendly dialogue to protect the rights of the most vulnerable populations.  All participants in today’s dialogue had said the same thing, that they wanted to protect the rights of the poorest.  If unilateral coercive measures caused more damage to human rights than they advanced, that was a problem.  The Special Rapporteur should be a facilitator of a discussion between source and target countries on a case-by-case basis.
 
Clustered Interactive Dialogue
 
United Arab Emirates noted the difficulty in obtaining appropriate data which would thoroughly highlight and assess the impact of illegal unilateral coercive measures on people and their human rights, and asked which measures had been taken to protect individuals from unilateral coercive measures.  Belarus took positive note of the proposals for the pathways to restore justice for victims of unilateral coercive measures contained in the report and hoped that this would become an impetus for States to refrain from such practices.  Iran supported the idea that individuals or groups affected by unilateral coercive measures could file complaints for rights violations to the Special Rapporteur and that the existing mechanisms to claim for damage were few and limited in granting remedies.  Iran agreed on the importance of an international investment regime in sustaining growth and development, and stressed the need to assess it for human rights impact. 
 
The majority of trade agreements had been reached between unequal partners, leading to lopsided and exploitative treaties, noted Nigeria and expressed concern about the lack of regulation of the space in which businesses and enterprises operated.  The right to remedy, compensation and redress for violations of rights by unilateral coercive measures must be universally available, both internationally and nationally.  Bolivia said that the international trade regime had allowed for the protection of a few, placed them above the States and the United Nations Charter, and so had given rise to major conflicts.  Foreign investments must respect human rights and respect the rights of States to regulate and protect mother nature.  Lack of effective remedy and redress mechanisms to victims of unilateral coercive measures was a concern, and the United Nations must play a key role in ensuring access to justice.  Bangladesh said that the Addis Ababa Action Agenda had recognized the private business activity as a driver of productivity and inclusive growth, and stressed that it was important to redress the negative consequences of trade and investment though effectively addressing any imbalance in the global economic and financial structures.
 
Tunisia underlined that the major currents in development had to do with human rights and managing of public affairs at the national level, adding that ensuring decent life was the primary task of States.  Multilateral cooperation was necessary to find common solutions for achieving sustainable development goals and creating an economic international environment conducive to development.  Namibia agreed that the role of parliaments was crucial in ensuring human rights protection while promoting trade.  It supported the proposal that a consolidated central register at the level of the Security Council or the United Nations Secretariat revise the list of all unilateral coercive measures in force. 
 
Ghana voiced concern over the fact that the growing number of investor/State dispute cases were won by large private organizations whose activities had little impact on job creation and long-term development.  It urged States not to approve trade agreements without exercising oversight functions and examining the compatibility of the agreements with human rights treaty obligations.  Nicaragua reiterated its firmest condemnation of unilateral coercive measures, which had been on the rise since 1990 and had constituted perpetuation of the so-called “gunboat diplomacy,” and had adversely affected the most vulnerable groups such as children, women, the elderly, persons with disabilities and indigenous peoples. 
 
American Association of Jurists noted that any unilateral coercive measures imposed on States caused adverse effects, which was why States and individuals had to participate in the making of such decisions.  Transnational corporations did not hesitate to violate human rights and States therefore had to get on with the development of an international binding instrument which would govern the activities of transnational corporations.  Centre Europe – Tiers Monde warned that trade had become a weapon, embraced by Western countries and international financial and economic institutions in their economic war against peoples, States, organizations and movements from the global South and the global North. 
 
International Islamic Federation of Student Organizations said that the Human Rights Council should not be a politicized arena where States instrumentalized human rights as weapons to defeat their political adversaries.  States parties had an obligation to promote the realization of the right of self-determination.  People in Jammu and Kashmir were denied this right.  FIAN International stated that placing private profit of corporations above the interests of people did not help the realization of human rights.  States also carried an obligation toward the potential human rights impact of their trade policies on people in other countries.  The call for a stronger supervisory role of national parliaments was supported.  Alliance Defending Freedom said that the family ought to be given the broadest possible protection, which included providing mothers with paid family leave.  Unfortunately, less powerful States were often subject to pressure by larger States, often with the goal of promoting controversial agendas and amounting to political and cultural colonization.
 
International Association of Democratic Lawyers praised the Independent Expert’s efforts to shed light on the negative effects of international trade.  Transnational corporations had acquired unprecedented economic and political power.  What was the best reply to those stating that transnational corporations did not need to respect human rights?  Arab Commission for Human Rights in a joint statement with CIRID (Centre Independent de Recherches et d'Initiatives pour le Dialogue)
 
stated that Governments needed to be protected from bribes by international investors and corporations.  What about the assets stolen by corrupt leaders, such as Gadhafi in Libya?  A question was also asked about the protection against the settlement-based occupation suffered by the Palestinian people.  International-Lawyers.Org noted that both international and domestic mechanisms had failed in addressing the injuries suffered by innocent victims of unilateral coercive measures.  The apparent suspension of negotiations on the Transatlantic Trade and Investment Partnership was welcomed.  What was the Independent Expert’s view?
 
International Organization for the Elimination of All Forms of Racial Discrimination, in a joint statement, supported the implementation of corrective measures to address the adverse effects of bilateral and multilateral trade agreements on human rights.  The “Responsibility to Protect” doctrine should not be misused in order to promote actions detrimental to social and economic development.  Khiam Rehabilitation Centre for Victims of Torture drew attention to the increasing sectarian violence against the Shia Muslims in Bahrain.  It called on the international community of lawyers to force the Government of Bahrain to hold democratic elections and it called on the Government of Bahrain to end impunity and sectarian violence, and to open a branch office of the Office of the High Commissioner for Human Rights in the country. 
 
Organization for Defending Victims of Violence drew attention to countries where unilateral coercive measures had further exacerbated war crimes, genocide and crimes against humanity, such as in Syria and Yemen.  In those countries most of the unilateral coercive measures amounted to collective reprisal, which was in violation of the Geneva Conventions.  Iuventum e.v. noted that the investor/State dispute settlements seriously impeded efforts to improve living standards to the highest possible level.  It thus supported the abolition of the investor/State dispute settlements.   Conseil international pour le soutien à des procès équitables et aux Droits de l’Homme noted that without a joint action of States it would not be possible to establish an equitable and democratic international order.  Bearing in mind the arbitrary rulings made by the judiciary in Bahrain, it called on the Government to respect the United Nations Charter and to implement the recommendations of its 2011 Universal Periodic Review.  International Muslim Women’s Union stated that bilateral and multilateral trade agreements needed to be linked to human rights treaty obligations.  It urged the Human Rights Council to urgently intervene to protect the rights of the people of Jammu and Kashmir.  Fundación Latinoamericana por los Derechos Humanos y el Desarollo Social denounced political, financial and paramilitary interference in Latin America.  It also condemned the executive directive of President Barack Obama of 2014 which had labelled Venezuela as a threat to security. 
 
Concluding Remarks
 
ALFRED-MAURICE DE ZAYAS, Independent Expert on the Promotion of a Democratic and Equitable International Order, stressed that the bottom line of his report was that privatizing dispute settlements was not a good idea.  The investor/State dispute settlement was incompatible with the principles of the United Nations Charter, and it was unacceptable to have private corporations encroach on the sovereignty of States.  Governments should be able to undertake their actions without fear that they would be brought to a private tribunal.  A side event would be held the following day, and would be devoted to the strengthening of the public system of justice – which was what the rule of law was all about.  Investor/State dispute settlements contained an attack on the very essence of sovereignty and independence.  The General Assembly had the right to elevate such questions to the International Court of Justice for its advisory opinion.  The United Nations Organization was the primary actor setting an agenda in the field of human rights.  Stolen assets ought to be repatriated, and it was the obligation of banks to ensure that.  The United Nations Conference on Trade and Development should convene a world conference on the necessary revision of the international investment regime. 
 
IDRISS JAZAIRY, Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights, said that the goal was to facilitate the dialogue.  On the occupied Palestinian territories, it was said that the blockade on the Gaza Strip since 2007, severely restricting exports and imports, constituted collective punishment of the people of Gaza.    Those people were kept in a stage of “de-development”, not only because of the severe electricity and potable water supply.  The Special Rapporteur looked forward to further interacting with Member States with the view of achieving noble objectives.  He hoped that a number of countries would accept his requests for visits.

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