Opening remarks by Ms. Kyung-wha Kang, Deputy High Commissioner for Human Rights at the Annual lecture series at the University of Maryland, Boston County

5 May 2009
Maryland, Baltimore

Dr. Boheling,
Distinguished Faculty,
Ladies and Gentlemen,

Introduction

I am very pleased and honored to take part in Humanities Forum Lecture Series of the Dresner Center at the University of Maryland, Baltimore County (UMBC) in commemoration of the 60th anniversary of the Universal Declaration of Human Rights. I wish to thank all of you and in particular Dr. Rebecca Boehling, Director of the Dresher Center for the Humanities, for inviting me as your guest speaker.

The human rights calendar has been truly intense in the past year. Not only did we celebrate the twin 60th anniversaries of the Universal Declaration of Human Rights and of the International Convention for the Prevention and Punishment of the Crime of Genocide. Just two weeks ago, we also successfully concluded the Durban Review Conference against racism, racial discrimination, xenophobia and related intolerance. Despite the controversy that had surrounded this conference, the vast majority of UN Member States adopted by consensus a final document that, if fully given effect, will help to alleviate the situations of millions of victims of racism all over the world.

Thus, I welcome the opportunity that you offer me to take stock of these developments. I will do so by putting them into the historical, as well as contemporary, context of the work of human rights mechanisms of the United Nations to implement the ever-expanding human rights agenda. I will conclude my discussion by offering some thoughts on the role that the new US administration could play in fostering this agenda.
I. UN human rights normative framework
Six decades ago, by proclaiming the Universal Declaration of Human Rights, the international community affirmed that the force of shared ideas and a common vision of respectful and peaceful coexistence based on the dignity of every member of humanity can prevail over brutality, hatred and destruction.

The Universal Declaration enshrined the hope for a better world where aspirations to freedom and wellbeing converge. This was a direct echo of President Franklin Delano Roosevelt’s vision of four interlocking freedoms: freedom from want, freedom from fear, freedom of expression and freedom of worship. His vision challenged the international community emerging from the horrors of World War II and the Holocaust to promote liberty through democracy, justice and an equitable distribution of resources, and to create an environment tolerant of dissent and difference, enhancing opportunities for all to live a life with dignity.

The framers of the Universal Declaration succeeded in delivering the first articulation of those rights and freedoms. They envisaged a world in which every man, woman and child lives free from hunger, and protected from oppression, violence and discrimination, with the benefits of housing, health care, education and opportunity. They thus planted the seeds for the emergence of a global culture of human rights.
Six decades later, a complex web of international instruments has fleshed out the content of the baskets of rights that the Universal Declaration spelled out, including civil, political, economic, social and cultural rights. All states have ratified at least one of the core international human rights treaties, and 80% have ratified over four or more.

However, this evolution of the past six decades has not been without challenges, in the aftermath of World War II, the geopolitical bipolarity of the Cold War undermined the unified approach to rights envisioned in the Declaration.
States with command economies and developing countries argued that the need for survival (i.e., economic, social, and cultural rights) took priority over the “luxury” of civil and political rights. In contrast, western governments feared that this approach would either hamper free-market practices, or impose overly cumbersome financial obligations on States, or both. Thus they chose to advocate the civil and political rights that were more akin to their political traditions and which were regarded as the pillars of democracy. As a result, the basket of economic, social, and cultural rights languished on the backburner, until a drastic reshuffling of the global dynamics could start to take place, as it did with the crumbling of the Berlin Wall and the demise of the Cold War.

Not surprisingly, these divergences between the proponents of civil and political rights and those of economic and social rights gave—and continue to provide— both solace and a rationale to those who called into question the very universality of human rights. Some of these skeptics are in good faith. Others are not. The problem is that human rights stand at the core of the relationship between a government and its people. And a few governments, especially those that lack democratic legitimacy, are loath to be told how they should or shouldn’t treat their own people. Even some of the staunchest proponents of human rights become defensive when the critical focus is placed on them. Against this background, it is not difficult to understand why critiques of universality were always more readily available than genuine introspection on how to address the underlying causes that prevent uniform applications of universal human rights.

But the profound , self-evident ideal of universality of rights proclaimed in the Declaration could not be held back indefinitely. Freed from the idelological and political shackles of the Cold War era, the world came to embrace the proponents of universality in making the case for a fuller, more faithful realization of the ideals of the Declaration. Thus, at the Vienna World Conference on Human Rights in 1993, the international community reaffirmed the universality of human rights, the interdependence, interrelatedness and indivisibility of all rights, the organic whole that is made up of civil, cultural, economic, social and political rights that must be nurtured holistically and persistently to realize the Declaration’s vision of all rights for all.

Today, with increased sharpness, advocates highlight the need to pursue all rights simultaneously. To this end, they underscore the primary duty of States to give effect to the full spectrum of rights, as well as the responsibility of the international community and its institutions to foster a culture of vigilance in implementation and solidarity in bolstering capacities at the national level to serve the purposes of freedom, along with social justice. The process of adopting the Declaration’s norms, giving them effect in law and implementing them is still ongoing at the international and national levels, with regional entities increasingly weighing in as well.

The six decades of UN norm and standard-setting and advocacy on human rights are reflected in a rising rights-consciousness on the part of governments as duty bearers and of citizens as rights-holders around the world. The recent decades, this has also coincided with the growth of democracies and the affirmation of democratic principles in many parts of the world. Compared with previous generations, people today are far more aware of, and ready to claim their rights as human beings, though perhaps not necessarily in the technical, legalistic terms as spelled out in international norms and their interpretations. They are conscious of their equal worth and dignity as human beings and their entitlements vis-à-vis those who govern them. At the same time, the sense of injustice and anger when rights are denied has also grown. Whether expressed in the form of advocacy or by the ballot or through protest, the fight for justice and equality has become a powerful drive for social change.

II. UN human rights institutional framework

Office of the UN High Commissioner for Human Rights (OHCHR)

Allow me to discuss briefly the role that human rights mechanisms of the United Nations play in fostering what I referred to as a culture of rights and in ensuring that these rights do not remain mere paper pledges.

There is often some confusion between the Office of the High Commissioner for Human Rights (OHCHR), the United Nations institution which I represent, and the Human Rights Council, the intergovernmental body that in June 2006 replaced the Commission on Human Rights, the institution which drafted the Universal Declaration under the leadership of Eleanor Roosevelt.

OHCHR was created in 1993 as an offshoot of the World Conference on Human Rights which took place in Vienna. It was the Vienna process that gave concrete voice to the long-standing wish of the human rights community to create the post of the UN High Commissioner for Human Rights within the United Nation secretariat. But the Conference itself could not flesh out what the task of the post should be, and deferred the matter for discussion at the General Assembly.

Thus, the work fell upon the General Assembly to negotiate what a UN Human Rights High Commissioner should be and do. Resolution 48/141 that was adopted after intense negotiations offered flexibility for future adaptation in response to evolving needs and conditions. It also meant that the personal vision and leadership of the incumbents would largely determine the orientation and evolution of the Office and the UN human rights program.

Each High Commissioner has made his or her mark as the Office evolved over the past 15 years. The first High Commissioner, Jose Ayala Lasso, built the foundation of the new Office. His successor, Mary Robinson, further institutionalized these avenues for action and strengthened the High Commissioner’s advocacy role on behalf of the victims of human rights violations. Her insistence that civil and political rights and economic, social and cultural rights constitute an indivisible whole continues to resonate to this day. The third High Commissioner, Sergio Vieira de Mello, was instrumental in moving forward the process of engaging the larger UN system on human rights issues, although his period in office was tragically too short. Acting High Commissioner Bertrand Ramcharan, while holding the fort pending the arrival of next High Commissioner, pushed ahead on pressing human rights issues. Subsequently, Louise Arbour led the Office through a time of unprecedented expansion and reform with exceptional drive and strategic thinking.

Navi Pillay took office in September 2009 and has successfully steered the Office through the Review Conference against racism. As I will explain later, that conference stirred contrasting sentiments and passions both in the US and elsewhere, but ultimately produced a document that serves the purpose of implementing the anti-racism agenda worldwide. I will also expand on the challenges facing the new High Commissioner in further detail. But first allow me to go back a few years in history to 2005.

That year was pivotal for the Office and the UN human rights program. In response to the call by the Secretary-General in his report on UN reform entitled “In Larger Freedom,” High Commissioner Louise Arbour presented a Plan of Action, outlining a strategic vision for the Office. The document was presented to the World Summit in the fall of 2005. The Summit acknowledged the evolution of the UN human rights program, and gave human rights a new standing as one of the three pillars of the UN, next to security and development. The Summit called for the creation of the Human Rights Council to replace the Commission on Human Rights, and last but not least made the commitment to significantly strengthen the Office of the High Commissioner.

The evolution of the UN human rights program that led to the 2005 Summit decisions continues to materialize through the work of OHCHR. It can be described as a shift from standard-setting to standard-implementation, from headquarters to the field, from disconnected endeavors to an integrated approach. Thus, greater country engagement in the field, enhanced leadership role for the High Commissioner through strengthened advocacy for victims of human rights violations and vulnerable groups, closer partnerships with other UN entities and civil society, and greater synergy with the Human Rights Council, the Treaty Bodies and the Special Procedures are the key tenets that guide the work of the Office in implementing the High Commissioner’s broad mandate..

The Treaty Bodies, composed of independent experts and assisted by OHCHR staff, are the custodians of the human rights treaties and monitor their implementation. For their part, the Special Procedures of the Human Rights Council, undertaken by individual or groups of specialists with the assistance of OHCHR human rights officers, conduct thematic or country-specific research and advocacy throughout the world.

For OHCHR, taking human rights to the field means working intensively at the country level with national governments, national human rights commissions, civil society and a wide range of local stakeholders to make certain that international human rights standards and the recommendations of Treaty Bodies and Special Procedures are reflected in national law and properly respected by national and local institutions.

It also means coordinating efforts to mainstream human rights throughout the peace, development, and humanitarian assistance activities of the UN. Indeed, this is one area where further investment of OHCHR expertise and resources will be called for in the years to come. Continuing efforts are needed to strengthen policy and operational guidance from a human rights perspective, to build capacities throughout the UN system, and to ensure that programmatic incentives are aligned with human rights imperatives.

The new High Commissioner took office this year at a time of OHCHR functional and institutional maturity. The coming years are expected to be a period of consolidation for the Office itself. Meanwhile, old challenges persist and new challenges to securing freedom from fear and freedom from want for all continue to arise. Discrimination, poverty, conflict, women’s and migrants’ rights, torture, rape, summary and arbitrary executions, disappearances, arbitrary detentions and other serious human rights violations continue to occur and often go unpunished. In the midst of climate change, the food crises, the economic downturn, as well as other global issues that tend to be framed in macro and material terms, keeping the focus on human consequences in the language of human rights continues to be an uphill struggle.

Human Rights Council

Moving now to the Human Rights Council, let me point out that this body was created with a decision of the 2005 World Summit in order to replace the much-criticized Human Rights Commission, which in time had lost some of its initial lustre and often had become the theatre of confrontations where narrow parochial interests held sway.

With the Council, the World leaders wished to stimulate new impetus for human rights, and create a genuine new beginning in June 2006. However, in the US and elsewhere, skeptics were unwilling to give the nascent Council the benefit of the doubt or to be counted among its members. They argue that the Human Rights Council, as the intergovernmental body tasked to promote “universal respect for the protection of all human rights and fundamental freedoms for all,” merely represents a distinction without a difference from its discredited predecessor. They reason that human rights abusers can still use this forum—as they did with the Commission—for partisan grandstanding and to shelter themselves from criticism regarding their own less than pristine record on human rights. Like the Commission, regional and political groups sway the discussions in the Council on issues that have little to do with human rights. These are all valid points. But they only see the negative side, without due mention of the positive aspects, of which there is quite a lot to be said about the Council.

Almost three years since starting its operations, it is undeniable that the Council’s assessment at regular intervals of the human rights record of all UN Member States, known as the Universal Periodic Review, is a genuinely innovative conception. Only time can tell whether the review will effectively change for the better the human rights situation on the ground. For the present, we should recognize that this initiative carries a promising potential. In 2008, the first 48 countries came under review. They took this endeavor very seriously.

Moreover, unlike the Commission, the Council is virtually a standing body. The frequency of its meetings—both in formal and informal gatherings—creates more opportunities to better hone operations and responses to both chronic human rights conditions and crises. Among the latter, the Council tackled the recent food emergencies and the economic downturn with the sense of urgency that they deserved. The assiduity of the Council’s meetings may also help to build a firmer ground of understanding among the Council’s members than sporadic interactions would allow for.

Furthermore, the criticism that the Council is politicized is vacuous. Intergovernmental discussions where government delegations representing national interests defend their positions and vie for influence are inherently political, and the Council cannot be an exception.
To expect other is to misunderstand the nature of multilateralism.

Although OHCHR and the Council operate collaboratively, but independently, the on-going discussion about the relationship between the Office and the Human Rights Council has not always been unproblematic. Indeed, thinking through the relationship between the Council and the Office will be one challenge that the new High Commissioner is examining in consultation with Member States and other stakeholders, particularly in light of the review of the Human Rights Council that the General Assembly will undertake in 2011. However, as the discussion unfolds, the outcome must be one of reaffirmation of the independence and impartiality of the High Commissioner and her Office, firmly grounded upon international human rights standards. This outcome is critical to her ability to undertake the broad mandate of promoting and protecting the human rights of all.

III. Contemporary human rights agenda

Upon taking office, High Commissioner Pillay stressed the need to take advantage of the 60th anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide to give new impulse to the prevention component of this fundamental human rights treaty. As the former president of the International Tribunal on Rwanda and a judge with the International Criminal Court, she knows all too well the cost of turning a blind eye to the first symptoms of impending mass atrocities. She acknowledged that, while international criminal justice had made great strides in punishing genocide, measures to avert this most heinous of crimes have failed to keep apace.

The High Commissioner grew up a non-white South African during the apartheid regime. She has, therefore, first-hand and painfully personal knowledge that it is not so much identity differences, but structures and policies of marginalization, exclusion, and discrimination, as well as a denial of human rights, including economic, social and cultural rights are at the root causes of genocide and large-scale human rights abuses. Achieving an environment of respect for equality and non-discrimination is essential to avert disasters of such magnitude that scar the conscience of humanity.

The Durban Review Conference was called precisely to take the measure of progress made by States in confronting some of the most egregious and historically deep-rooted aspects of discrimination and inequality, namely racism, racial discrimination, xenophobia and related intolerance. Eight years had elapsed since the conclusion of the first World Conference on these topics, which took place in Durban. Thus, such an assessments of deeds done and future practical measures to better implement the 2001 Durban Declaration and Programme of Action, the final document that Durban produced, was of capital importance. Racism is a denial of human rights, pure and simple. It may be institutionalized, as the Holocaust was, or it may express itself less formally as the hatred of a particular people or a class — as anti-Semitism, for example, or the more recent “Islamophobia.”

We see such intolerance in national histories that deny the identity of others, or that reject rightful grievances of minorities who might not share a so-called “official history.” We see it emerging in new forms such as human trafficking, whose victims tend to be women and children of low socio-economic status. Refugees, asylum-seekers, migrant workers and undocumented immigrants are increasingly being stigmatized if not persecuted. A new politics of xenophobia is on the rise. Discrimination does not go away by itself. It must be challenged at every turn, as the Secretary General of the UN, Ban Ki-moon stated in his opening speech at the Review Conference.

These observations may seem obvious. Yet the Review Conference was marred by the same controversy that had cast a long shadow over the consensual results of the 2001 Durban gathering. At that time, some non-governmental organizations at the fringe of the conference had made repugnant anti-Semitic attacks. Although rejected by the Conference itself, such attacks prompted the US and Israel to walk out. Since then, fearing a repetition of those circumstances, a vociferous lobby of anti-Durban groups tried to discredit the Review Conference process even before it actually unfolded.

This was particularly regrettable and misleading because, if people actually had taken the bother to read the Durban Declaration and Programme of Action, they would have realized that the document is really a very comprehensive and constructive guide to national governments and other actors in taking on the challenge of racism around the world. Specifically, contrary to the misperception perpetuated that it denies the Holocaust and singles out Israel for criticism, it includes a paragraph which says that “the Holocaust should never be forgotten”. It includes two paragraphs that denounce “anti-Semitism and Islamophobia”, and one paragraph which mentions the suffering of the Palestinians, their right of self-determination, as well as the security of all States, including Israel, and two paragraphs calling for peace. That’s all there is on the Middle East and, frankly, this language is hardly disputable.
Despite this controversy and the absence of ten western countries, including the US, the Review Conference reached consensus on an excellent text, known as the outcome document. This document is carefully balanced. It addresses key issues. It takes concrete steps toward ending the politics of hatred and setting the stage for action in a global campaign for justice for victims of racism worldwide.

In framing this plan for action, Member States showed flexibility and unity of purpose and an unprecedented spirit of compromise and respect for diversity, as our times demand. The document urges States to prevent manifestations of racism, racial discrimination and xenophobia, especially in relation to migrants, refugees and asylum seekers. States are also asked to promote greater participation and opportunities for people of African and Asian decent, indigenous peoples and individuals belonging to national or ethnic, religious and linguistic minorities. The document reaffirms the centrality of freedom of expression and stresses its compatibility with existing international law that prohibits incitement to hatred.

States also acknowledged the injustice and atrocities of the past and pledged to prevent their recurrence. To this effect, they endeavored to prohibit violent, racist and xenophobic activities by groups that embrace extremist ideologies.

Ladies and gentlemen,

At an event during the Durban review Conference, Stephane Hessel, a Holocaust survivor and a drafter of the Universal Declaration of Human Rights, spoke movingly about the election of US President Obama. He pointed out how his victory incarnated the spirit and the aims of the Conference. Yet, as I mentioned before, the United States decided not to participate in this important gathering. The High Commissioner has now urged all States which stayed away to evaluate the outcome document on its own merit and substance. She encouraged them to rejoin international efforts to combat racism, as mapped out by the outcome document, at the earliest opportunity.

Indeed, President Barack Obama took office amidst great expectations that human rights will be at the center of his administration’s agenda. Many in his administration are well known human rights advocates and humanitarian-minded individuals. He should not disappoint the hopes of those who see his presidency as an opportunity to restore international trust in US leadership and support for human rights.

Crucial to achieving these goals is a mutually respectful partnership between the United States and the United Nations. However, there is no hiding the fact that recently the United Nations has come under some harsh criticism in the US and elsewhere.

The question for a new presidency is how to overcome diffidence, restore trust and maximize US participation in an environment where transnational threats have shattered established notions of cooperation and confrontation.
There are some firm areas and principles that should anchor and guide such actions. Chiefly, there is a clear need to protect and promote human rights, as well as to bolster the institutional mechanisms that support them.
A crucial step in the right direction is the US decision to run for a seat in the 47-member Human Rights Council this month. This is particularly important in view of the fact that the status and working methods of the HRC will be reviewed before 2011.

As I have discussed previously, to counter genocide, mass atrocities and human rights abuses, the international community—with active US contribution—devised ever more sophisticated mechanisms of international justice wherein individual criminal responsibilities could be ascertained. The International Criminal Court was conceived with this aim in mind. The Clinton administration eventually signed onto the Court. That decision was reversed by the Bush administration which also sought to limit other nations’ collaboration with the Court. I urge President-elect Obama to again sign on the dotted line of the ICC treaty. This will send the powerful signal that the US is prepared to help avert and punish the most heinous human rights abuses. In the same vein, the US should fully embrace the core human rights treaties that it has yet to sign on to .
As American trust in the UN plummeted in the past years, so did the US itself begin to face serious problems of credibility as a human rights advocate, as the pre-eminent guarantor of world’s security and the engine of human welfare.
No one should underestimate the shock and the security concerns that the 9/11 attacks provoked. Terrorism represents a severe threat and a profound challenge to human rights and security. In their countermeasures, however, the US and other governments expanded executive power at the expense of the legislature and the courts. And experience shows that if checks and balances are not adequate, the margin of abuse is high.

I am pleased that President Obama is determined to resolve the untenable situation of detainees at Guantanamo Bay, ban CIA prisons, and implement the prohibition on torture. Moreover, I would welcome any initiative that might help shed light into the still opaque areas that surround capture, interrogation methods, rendition, and detention conditions of those alleged to have been involved in terrorism. All detainees are entitled to justice. Those innocent individuals caught in the web of counter-terrorism measures are also entitled to reparations.

In conclusion, let me reiterate that signals coming from America reverberate around the world. Sending the right ones is also the responsibility of power. And today’s challenges require that the world’s two crucial players, the UN and the US, work together to pursue with an identity of purpose, if not an identity of methods, our shared aspirations for human rights, security and development. Thank you.