The Activities of the Office of the United Nations High Commissioner for Human Rights: Achievements and Challenges

Statement by
Ms. Louise Arbour
United Nations High Commissioner for Human Rights
(Tokyo, United Nations University; 9 November 2004)



Distinguished guests, ladies and gentlemen,

It is a privilege to have been invited here today to talk to you. I began my career as an academic and I always welcome an opportunity to return to an academic environment.

There are many layers to my work as High Commissioner for Human Rights. As I mentioned two weeks ago in the United Nations General Assembly, it is impossible not to be struck by the breadth of work covered: powerful testimony to the fact that there are few areas of our lives that are not impacted, for the better, by the universal application of our human rights and that there are few areas of our lives which are not impacted for the worse by their denial.

Currently, OHCHR is engaged operationally in some 40 countries: whether through our own offices, through United Nations peace missions, or technical cooperation projects. From training law enforcement officials, to strengthening national human rights institutions; from mapping past human rights violations, to denouncing current violations, our field offices are engaged in a very wide range of activities designed to enhance the protection of universal human rights. This, the operations dimension, is, in many ways, the apex of our work: endeavouring to ensure that we adopt the best approach, and have the commensurate means, to remedy or reverse situations of human rights violations, when and where they occur.

Serving as a backdrop for this work, are critical research and conceptual considerations in which we are engaged, and which require a modern and relevant understanding of the meaning of rights, balancing universal concepts with culturally sensitive applications. It is only through the free and open exchange of views, a concept very at home in these university surroundings, that we can as a global community hope to achieve something close to unity on the fundamental notion of human rights.

Human rights as law

Overall, however, today, I shall highlight the legal dimension, which, in many ways, serves as the glue binding together the sometimes seemingly disparate parts of the work of my Office.

It is my unshakeable belief that the power of human rights lies not just in its expression of an aspiration – of an ideal – but in its articulation of a legal framework which binds us all.

Since the inception of the Universal Declaration of Human Rights, the international community has developed a body of norms and standards that has given effect to the fundamental principles contained in the Declaration. Every State in the world today has voluntarily accepted binding human rights obligations through being a party to one or more of the seven core human rights conventions. These conventions have become not only part of our collective consciousness, but also part of our domestic constitutional and legal orders and are frequently invoked by courts in many parts of the world. They have become the arbiter between the State and its legitimate interest, and the individual and his or her legal rights.

Giving primacy to this body of law helps us to place all human beings – not just those in positions of authority – at the centre of what are often complex policy debates. It helps us to weigh values that sometimes appear to clash. Take for instance the need to put in place firm measures to prevent and punish terrorist acts without trespassing on human rights; or the desire to address the needs of war torn societies for peace and reconciliation without undermining the quest of victims for protection and justice; or the need to eradicate poverty, enhance development, and promote democracy without sacrificing any set of rights be they civil, cultural, economic, political or social; or the need to celebrate cultural identity while at the same time respecting the dignity and equal rights of all. These are all examples of dilemmas that can be adequately resolved through proper understanding and application of human rights law.

It is through the promotion of greater respect for the existing international legal framework of human rights and its progressive incorporation into national law that the human rights vision will have a practical effect where it matters most, in the daily lives of people around the world. In this regard, I welcome the active deliberations ongoing in this country on whether to accede to the Optional Protocol to the International Covenant on Civil and Political Rights which deals with individual petitions. It is my hope that these deliberations result in a commitment to ratify.

I believe firmly in the role of law to guide us through difficult societal challenges. For it is law, after all, that evens the playing field between the State, with its legitimate interests including national security, and the individual, with his or her fundamental interest in liberty and personal security. But when I speak about the law, I do not mean any law: there is law as it is and law as it ought to be. Law, in other words, is subject to abuse. Apartheid South Africa, of course, was governed by laws but these were laws that regulated oppression and led to horrific denial of dignity.

The law that must guide us is that law which is designed to deliver real justice and which provides genuine remedies for grievances. It is a dynamic and evolving institution that is capable of preserving the rights of all while adapting itself to the needs of a changing world. This is the role of human rights law. Law, and especially human rights law, provides the key to the realization by all individuals “of their equal and inalienable rights as members of the human family” (Universal Declaration of Human Rights).

One objection that is sometimes raised with respect to international human rights law is that it is incapable of effective enforcement. I think this criticism is less valid than it once was. To start with, we should be proud of our collective achievements in turning human rights ideals into legal obligations that most States now voluntarily accept at both the international and national levels. Through the ratification of human rights treaties and their incorporation into domestic constitutional and legal systems, individuals are increasingly able to assert and claim their rights. We have seen inspiring judgments from courts at all levels in all continents that turn human rights into a reality for ordinary people across the globe. These are not small accomplishments.

The International Criminal Court

One critically important development was the creation of the International Criminal Court (ICC) under the Rome Statute, now ratified by 97 States. The ICC has provided an historic new legal infrastructure for holding criminally accountable those individuals who plan, instigate or perpetrate genocide, war crimes or crimes against humanity. The ICC is in some ways a logical extension of the two ad hoc tribunals, for the former Yugoslavia and Rwanda, that articulated many essential aspects of international criminal law, including the elements of the crimes of genocide, torture, and rape as an act of genocide or as a crime against humanity. It represents a major step toward strengthening the international human rights system.

Transitional justice

Human rights law is also becoming increasingly relevant in examining major conflicts that affect international peace and security. The increased visibility of human rights on the Security Council agenda is an important reflection of this trend. I had the opportunity to address the Security Council, reporting on the human rights situation in Darfur, Sudan, following a mission I took there in September together with the Secretary-General’s special adviser on the prevention of genocide. My Office is now supporting a Commission of Inquiry that has been established to consider events that have taken place in Darfur and to apply a careful analysis in the light of international law as to whether they may amount to grave violations of human rights and humanitarian law and, critically, to identify perpetrators and recommend measures to ensure that they are held to account for their actions.

I should also mention, in this context, the consideration by the Security Council of the role of respect for the rule of law in conflict and post-conflict societies generally. Countries emerging from conflict and crisis have inevitably faced an erosion of the rule of law, together with inadequate law enforcement and administration of justice, as well as increased vulnerability to human rights violations. This situation is often exacerbated by a lack of public confidence in state authorities and a dearth of resources.

In such an environment, it is essential to establish a system of government and justice that is premised on respect for the rule of law and the protection of human rights. Ensuring that respect for human rights takes hold, both in legal institutions and the population at large, requires a continuous and coherent engagement by all stakeholders, as well as by the international community.

On this last point, the Security Council held an important debate in early October on this question on the basis of a report submitted by the Secretary-General. The Council noted "the importance and urgency of the restoration of justice and the rule of law in post-conflict societies, not only to come to terms with past abuses, but also to promote national reconciliation and to help prevent a return to conflict in the future". The Council also emphasised that such processes must be inclusive, gender-sensitive and open to the full participation of women.

As an incoming member of the Security Council, Japan will be asked to play a key role, just as it has done in many of the new generation of complex, multi-faceted UN peace missions we have witnessed this past decade, in identifying specific ways to ensure respect for the rule of law in societies in transition.

The justiciability of human rights law

There are many other examples, less obvious, perhaps, than those just mentioned, of areas in which human rights, as law, is being given ever greater prominence. Allow me, briefly, to flag three.

(i) Economic, social and cultural rights

First, States have affirmed repeatedly the indivisibility of all human rights. However, economic, social and cultural rights have not always enjoyed the same level of legal protection as civil and political rights. This needs to be addressed. To be sure, the legal obligations of States can, in some aspects, be different for both sets of rights – particularly with regard to the availability of resources – but the growing jurisprudence from national courts, as well as from regional human rights mechanisms, demonstrates that economic, social and cultural rights also lend themselves to judicial remedies in cases of clear violation. This is an encouraging development.

The Commission on Human Rights is now discussing the possibility of making the implementation of the rights enshrined by the International Covenant on Economic, Social and Cultural Rights subject to an individual communications procedure. This very important debate has the potential of contributing significantly to a better understanding of the nature of economic, social and cultural rights. That greater understanding will facilitate their implementation at the national level by recognising a legitimate role for the courts in ensuring their respect and protection.

(ii) Persons with disabilities

Secondly, when we talk of standard-setting, we must also remember the on-going efforts of to spell out more clearly the obligations that States have accepted to ensure that the 600 million persons living with disabilities receive the same human rights protection to which everyone else is entitled. Persons with disabilities represent one of the largest and least visible groups among those suffering from discrimination. The constant violations of their rights require that a new treaty be adopted urgently. It will be vital that, in agreeing on a new instrument, we ensure that the level of protection recognized for persons with disabilities is not lower than the protection to which they are entitled under the existing instruments.


(iii) Transnational corporations

The Universal Declaration of Human Rights proclaims that every individual and “every organ of society” shall “strive…to promote respect for these rights and freedoms and…to secure their universal and effective recognition and observance”. As we address the links between human rights and economic and development issues we need to clarify the human rights responsibilities of non-state economic actors.

I have in mind, in particular, the important debate concerning the human rights role and responsibility of business entities – including transnational corporations. I will work - with States and civil society - to involve business in the promotion and protection of human rights, in particular through the Secretary-General’s Global Compact and through our support to relevant discussions at the Commission on Human Rights.

Terrorism

Ladies and gentlemen,
Let me turn to another issue, of immense relevance in today’s world, which concerns how we can, collectively, intelligently, and effectively deal with terrorism. Here, too, human rights law can have – indeed, must have – a significant and constructive role to play.

There is no doubt that States are obliged to protect their citizens, including from the threat of terrorist acts. Terrorists, time and time again, have shown themselves to hold human life in contempt. States have the duty to secure the right to life by putting in place effective measures to prevent and deter the commission of acts of terrorism. This has been the consistent view of regional human rights courts and international bodies, including the UN treaty bodies. Indeed, the inability or unwillingness by a state to discharge its responsibility to protect people under its jurisdiction should be sufficient legal and political grounds for international intervention.

However, counter-terrorism measures cannot be undertaken at any cost.

It is vital, in time of crisis, that all branches of governance be called upon to play their proper role and that none abdicate to the superior claim of another. In particular, I believe that the judiciary must not surrender its sober, long-term, principled analysis of issues to a call by the executive for extraordinary measures grounded in information that cannot be shared, to achieve results that cannot be measured. This is of course not to suggest that the judiciary should play an obstructionist role when governments are under pressure to react to unprecedented, acute and immediate threats. But if governments fail to act with required restraint, it is for judges, relying on legal principles, to articulate and apply the parameters of justifiable government action when human rights are in jeopardy.

In the United States, the Supreme Court ruled this summer on cases involving the right of access by detainees to the courts. In the Hamdi case (Hamdi v. Rumsfeld, 542 U.S. ___ (2004)), concerning a U.S. citizen who was detained in Afghanistan and held in a military prison in the U.S., the Supreme Court acknowledged the prerogative of the executive to exercise authority over foreign policy and, in particular, the conduct of hostilities. Yet, the Court also stated that, "as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat".

The Court decided to apply a balancing test under the Due Process Clause of the US Constitution, recognizing that vital interests were at stake on both sides of the equation, and it concluded that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for the classification, and a fair opportunity to contest the Government's assertions before a neutral decision-maker. As the Court resoundingly declared, "[a] state of war is not a blank check for the President when it comes to the rights of the Nation's citizens".

The same court also decided the Rasul case (Rasul v. Bush, 542 U.S. ___ (2004)), concerning the detention camp at Guantanamo Bay. In that case, the Supreme Court took the view that detainees must be given access to the courts, despite the fact that the camp is situated outside of the United States. The Court stated that "[w]hat is … at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing". This it answered in the affirmative, notwithstanding the camp's location in Cuba and the fact that the petitioners were not United States citizens.

I believe that courts must play an oversight role in ensuring respect for human rights standards in the context of executive action taken with respect to external threats. Let us not forget that the presumption of innocence, contained for example in the International Covenant on Civil and Political Rights, is a non-derogable right under international law. In today's highly-charged atmosphere of fear and uncertainty, there is all too great a risk of a rush to judgment in suspected terrorism cases. Recent acquittals in a number of countries teach us that it pays to be vigilant in upholding the presumption of innocence, and nowhere can vigilance be exercised more effectively than in a court of law.

Finally, I would also like to refer to the recent judgment of the Israeli Supreme Court (Beit Sourik Village Council v The Government of Israel, unreported decision of the Supreme Court of Israel sitting as the High Court of Justice [HCJ 2056/04], 2 May 2004) regarding the barrier that is being erected, according to the Government of Israel's argument, to safeguard the population from the threat of suicide bombers and other terrorist acts. As you may remember, just before the International Court of Justice issued an Advisory Opinion on this matter in July, the Israeli Supreme Court held that part of the separation fence was unlawful. The Court found that the balance between security needs and the needs of the local inhabitants was not assessed proportionately, and that the hardship caused to Palestinian villages covered by the petition was excessive in view of all the facts. It concluded that there was no option but to re-route parts of the barrier".
Torture
There can also be no doubt that the prohibition against torture and cruel, inhuman or degrading treatment or punishment is non-derogable under international law. This is made plain by the inclusion of article 7 of the International Covenant on Civil and Political Rights in the list of Covenant provisions that can never be subject to suspension. If any reaffirmation of that principle were necessary, it was made by the United Nations Committee against Torture in November 2001, when it reminded States party to the Convention against Torture of the non-derogable nature of many of the obligations undertaken by them in ratifying the CAT, including the obligations contained in Article 2 (whereby "no exceptional circumstances whatsoever may be invoked as a justification of torture"), Article 15 (prohibiting confessions extorted by torture being admitted in evidence, except against the torturer), and Article 16 (prohibiting cruel, inhuman or degrading treatment or punishment).

Yet we find, remarkably, that questions continue to be raised about this clear requirement of international law, including at high levels of government, within the context of what is referred to as the war on terror. The language of article 2 of the Convention against Torture is clear. It holds that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
The fact is that international law, and not least international human rights law, has come under greater pressure recently than perhaps it ever has since the adoption of the United Nations Charter in 1945. At the High Commissioner’s office, one of our major objectives is to promote the universal ratification of the core international human rights treaties, perhaps one day achieving their acceptance in a manner similar to that enjoyed by the Geneva Conventions. Yet it is perhaps ironic that the Geneva Conventions and fundamental principles of international humanitarian law are themselves now facing a risk of erosion in international support.

It is argued by some that the extraordinary nature of the challenges now facing the world require extraordinary responses, and that such challenges were, frankly, beyond the imagination of the drafters of some of the core treaties and are therefore insufficiently addressed by these instruments. Yet, even in the face of such challenges, re-evaluating the absolute prohibition in law of the use of torture and ill-treatment remains as inefficient a line of questioning as it is unprincipled. Obtaining information by torture makes the torturer complicit in a repugnant activity that often yields an unreliable product.

Conclusion

The popular response to these dilemmas might be to see some logic in dramatic departures from traditional legal thinking. Revisions of fundamental norms, if they are ever to occur, should take place only in the context of consultation and open debate among States. More importantly, protective measures should not be unilaterally by-passed or overridden when they matter the most. I have here in mind, particularly, situations in which vulnerable persons - foreign suspects, for example – are in the hands of stressed and pressured authorities. It is precisely in such situations, when rights are threatened, that legal protections become necessary. This is where we must insist on strict compliance with human rights law because the worst time to restrict the scope of rights is when these rights are all that is left to resist the application of unfettered force, whether that force is used for a valid, or for a sinister, purpose.
We are all, collectively, the guardians of each other’s safety and of each other’s dignity.

Thank you very much.