人权理事会举行关于公共服务中善治问题的小组讨论（部分翻译）

人权理事会
中午

2015年9月24日

人权理事会在午间会议上举行了一场小组讨论，探讨公共服务中善治方面的基于人权的方针。 

人权事务高级专员办事处人权条约司司长易卜拉欣·萨拉马（Ibrahim Salama）在开场发言中表示，尽管善治是公众信心、和平与可持续发展的强大驱动力，但依然存在多重挑战，例如紧缩政策、不受限制的私营化、腐败、冲突和暴力。人权和善治本质上是相互关联的，善治方面基于人权的方针要求国家在提供公共服务时保证非歧视和平等。公共服务的私营化可能会给人权带来负面影响。 

马克斯·普朗克比较公法和国际法研究所（Max Planck Institute for Comparative Public Law and International Law）主任兼主持人安妮·彼得斯（Anne Peters）解释道，注重人权能推动善治，称职而不腐败的公共服务能改善任何国家的人权状况。通过人权视角，能够指明应该如何提供服务。透明、参与和诉诸法律是良好而可问责的治理的主要元素。 

尼日利亚社会经济权利与问责项目执行主任阿德托昆博·穆木尼（Adetokunbo Mumuni）谈到了非政府组织在反腐机构失效时对腐败现象启动法律行动方面的作用。因此，有必要鼓励法院接受腐败案件中的公共利益诉讼。“大腐败”不能仅被视为一个学术问题。这是切实影响人民的问题。   

首尔国立大学国际研究研究生院的国际发展教授金泰均（Kim Taekyoon）介绍了善治与可持续发展目标之间的联系。他说，可持续发展目标提供了一个机会，以便在国际发展议程中纳入善治的各个重要层面，他还强调了国际与国家指标的重要性。

残疾人权利委员会成员兼土耳其大国民议会副议长萨法克·帕维（Safak Pavey）表示，占据主导、根深蒂固的文化能够动用精心算计的圈套来防止采用国际上的成就，当传统与人权产生冲突时，它们必须保护权利和自由。  

乌拉圭国家人权机构主任兼监察员马里亚纳·冈萨雷斯·盖尔（Mariana González Guyer）从性别视角谈到了善治的挑战和弱点。她强调，有必要在善治的不同层面纳入性别平等视角，将妇女分到弱势群体的类别。 

波兰国立公共行政学校的主任延·帕斯特瓦（Jan Pastwa）表示，充足的法律和法律框架并不能保证国家在日常生活中追求人权。公共官员对公民的意识和积极态度至关重要，如果缺了这些，立法就不足够。人权是改变心态的良好办法。

在随后的讨论中，发言人强调了善治和人权之间的联系，并强调了在各个级别加强善治的重要性，包括在国际组织内。各国介绍了为加强善治而采取的部分国内努力，包括打击腐败，确保透明，加强公民参与决策进程。

在讨论中发言的有：欧盟，代表支持第25/8号决议核心小组的波兰，代表非洲集团的阿尔及利亚，法语国家国际组织（Organisation Internationale de la Francophonie），代表伊斯兰会议组织的巴基斯坦，孟加拉国，法国，卡塔尔，俄罗斯联邦，埃及，突尼斯，印度，澳大利亚，格鲁吉亚，爱尔兰，塞拉利昂，比利时，美国，新加坡，土耳其，加纳，埃塞俄比亚，黑山，巴林，塞内加尔，阿塞拜疆，南非，厄瓜多尔，爱沙尼亚，哥伦比亚，阿尔及利亚，摩洛哥，中国和伊朗。 

促进巴林民主和人权的美国人联盟（Americans for Democracy and Human Rights in Bahrain），阿拉伯人权委员会，儿童权利公约非政府组织小组（Group of Non-Governmental Organizations for the Convention on the Rights of the Child），人权机构（Agence pour les Droits de l’Homme），和平、正义和人权国际研究所（Institut International pour la Paix, la Justice et les Droits de l’Homme），权利与发展全球网络（Global Network for Rights and Development）也做了发言。

理事会将于上午9点至晚上9点举行全天会议，并将于3点30分审议蒙古、巴拿马和马尔代夫的普遍定期审议结果，随后结束关于人权机构和机制的一般性辩论。 

Opening Statement

IBRAHIM SALAMA, Director of the Human Rights Treaties Division at the Office of the High Commissioner for Human Rights, in an opening statement, said good governance was a core mission for every government, and recalled that human rights were grounded in the understanding that States existed to serve the people. Good governance was a matter of rights, and a strong driver of public confidence, peace and sustainable development. Yet, good governance faced multiple challenges, such as austerity policies, untamed privatization, corruption, conflicts and violence. The outcry by popular movements of revolt and the desperate odyssey of millions of people fleeing failed governance constituted clear evidence of failure to deliver on the promise of the Universal Declaration of Human Rights. Too often, migrant women had to suffer exploitation in silence, without recourse to the authorities, for fear they would be deported if their irregular status was discovered. School children received differential treatment on the basis of their race, caste, religion, minority status or sexual orientation; people could not access healthcare; persons with disabilities were denied basic accessibility; vendors were forced to pay protection money to criminal gangs but could not go to the police; and indigenous peoples’ land and resources were sold to cronies of the authorities.

Human rights and good governance were intrinsically inter-linked and international human rights standards underpinned the mechanisms and processes of governance, and provided performance standards against which governments could be held accountable. The treaty bodies had provided States with different elements of good governance, particularly in their general comments. A human rights-based approach to good governance required States to guarantee non-discrimination and equality in the provision of public services, including access by vulnerable groups. The growing trend towards the privatization of public services potentially had adverse impacts on human rights and access to education, housing, or water and sanitation. If public services were privatized, it was essential to put in place effective accountability mechanisms and monitoring systems to ensure quality control and transparent tender procedures to counter corruption. States should furthermore ensure that private actors complied with human rights standards.

Statements by the Moderator and Panellists

ANNE PETERS Director of the Max Planck Institute for Comparative Public Law and International Law and panel moderator, explained that the panel started from the idea that analysing the public service through the lens of human rights could yield policy benefits, and that there was a mutually beneficial relationship there. On one hand, a focus on human rights could improve the quality of public service, and thus good governance. On the other hand, a competent and non-corrupt public service would improve the human rights situation in any given country. A well governed public service was an essential component of the promotion and protection of human rights. When citizens came in touch with the public service, all kinds of human rights, social or liberal, would come into play. What was at stake was also the human rights of the public officials themselves, notably their right to be selected, hired and promoted without discrimination. Only if they were remunerated properly and when their human rights were respected, would they be willing and able to perform their tasks without corruption. The human rights perspective allowed for the identification of core elements of which services should be offered and how. Transparency, participation and access to justice constituted the main elements of good and accountable governance.

ADETOKUNBO MUMUNI, Executive Director of the Socio-Economic Rights and Accountability Project (Nigeria), spoke of the role of non-governmental organizations in initiating legal actions against corruption where anti-corruption institutions failed to do so. Although corruption was morally repugnant and inimical to development and the welfare of citizens, many Governments, especially in the developing world such as Africa, continued to pay lip service to the idea that fighting corruption was in both their own interest and the interest of the global good. With that in mind, civil society organizations could play a key role in ensuring the effective enforcement of anti-corruption legislation and conventions, such as the United Nations Convention against Corruption, by pushing anti-corruption cases in order to deter misconduct. Secondly, they could act in the area of prevention by persuading Governments to enact important legislation, such as whistle-blower protection laws. Since grand corruption was inimical to the public interest, anti-corruption civil society organizations should have legal standing when the public interest was at risk. It was thus important to campaign for legal reforms to relax standing non-governmental organizations in cases of grand corruption, and to encourage courts to accept public interest litigation in corruption cases. Large-scale official corruption was so harmful that it eroded public trust in governments and permeated critical institutions of governance. It was thus appropriate for the world’s nations to look at how international law could be engaged as a major component of the efforts to address the problem. The problem of grand corruption could not be treated as a mere academic matter. It was a problem that affected real people.

KIM TAEKYOON, Professor of International Development at the Graduate School of International Studies, Seoul National University, presented the links between good governance and the Sustainable Development Goals. He said the deepening of good governance practices at all levels was an indispensable condition for the full realization of human rights. The Sustainable Development Goals provided an opportunity to go beyond the Millennium Development Goals - which did not include significant good governance aspects – either as a stand-alone goal or integrated into other goals relating to water, food, gender etc. Good governance had become a controversial value because it was seen as a Western value and because of its usage in the realm of international development assistance. Multiple indicators were now available to assess different aspects of good governance, and were useful for deliberations on how to include good governance in the Sustainable Development Goals. It was important to find a way of transforming the internal logic of good governance and redesigning it to fit the international development agenda, and to identify priorities in good governance to match different speed and patterns of development among countries.

SAFAK PAVEY, Member of the Committee on the Rights of Persons with Disabilities, and Deputy Speaker and Member of the Grand National Assembly of Turkey, said States became respected members of the international community when they embraced its principles. Today’s understanding was that the public service management approach was based on human rights. Issues remained regarding national implementation of international standards. Dominant deep rooted cultures were capable of employing well-calculated traps to prevent the adoption of international achievements. The propaganda presented the universal law and principles as a new tool invented by some countries to exploit others, and it had been successful so far in convincing the masses. While reforms were adopted to please international public opinion, political authorities were adopting parallel policies to ensure that the worst traditional and patriarchal practices thrived. When confronted with a clash between tradition and human rights, they had to go one step beyond tradition in order to be fair and just in their decision to protect the rights and freedoms.

MARIANA GONZÁLEZ GUYER, Director of the National Human Rights Institution and Ombudsman of Uruguay, spoke about the challenges and weaknesses of good governance from the gender perspective. The gender system was a reflection of the dividing lines in society and internal hierarchies, and together with other social differentiations, it restructured human relations. That complex system consisted of laws and norms, grand institutions such as families, economy, personal identities, symbols, myths, beliefs and values. It was necessary to include gender perspective in different dimensions of governance, as well as to include women as a vulnerable category. Women had transformed processes of governance due to their participation in different State institutions, such as executive, legislative and judicial, as well as in civil society organizations. It was not possible to overlook that institutions were interlinked with the gender system, as shown by the positions occupied and roles played by men and women. Institutions were inserted and were part of the gender system, which permeated the laws and norms that governed them. The relationship between gender and governance had not been sufficiently addressed in theory or in practice. In Latin America feminist theories did not consider the notion of governance.

ANNE PETERS, Director of the Max Planck Institute for Comparative Public Law and International Law and panel moderator, asked Mr. Pastwa to draw on his inside knowledge of public administration, and comment on the potential and limits of the law for implementing good governance and public administration.

JAN PASTWA, Director of the National School of Public Administration (Poland), said that sufficient laws and legal frameworks were not a guarantee of a pursuit of human rights in the daily life of a State. The concept of a human rights based approach to good governance provided a good start. It was the request of the workers of the Gdansk Shipyard who in August 1980 had formulated the 21 Gdansk demands and demanded that all members of the public and all citizens should have equal right to access public offices, and that without an open and accessible Government leading the country, there would be no change in the lives of citizens. Awareness and positive attitudes among public officials towards citizens were critical points without which the legislation would not be enough. Human rights were a good approach to change the mind sets and to change the cold approach of just governing.

Discussion

European Union said that professional and accountable public service upholding the highest standards of efficiency, competence and integrity was one of the essential components of good governance, while good governance principles and standards in public services acted as a preventive mechanism against corruption in numerous forms. Poland, speaking on behalf of the core group of sponsors of the resolution 25/8, recognized that in every society there were groups with limited access to public services, including women, children, elderly, persons with disabilities and others, and welcomed the Sustainable Development Goals’ targets of developing accountable, effective and transparent institutions. Algeria, speaking on behalf of the African Group, stressed that principles of impartiality, rule of law and combatting corruption were essential to achieving good governance, building of human capital, and the realization of the right to development, and called for consolidation of good practices at national, regional and international levels. Morocco, speaking on behalf of the International Organisation of la Francophonie, said that the respect of principles underpinning good governance – transparency, efficiency, accountability and combatting corruption - were an ongoing challenge for all States and were a priority for Francophone countries because of the devastating impact of corruption on societies. Pakistan, speaking on behalf of the Organization of Islamic Cooperation, said that good governance empowered nations to live in dignity and freedom and stressed the need to address challenges that developing countries faced in ensuring public sector governance, including lack of resources and capacity. Bangladesh highlighted that an ensuring human rights based approach to good governance was a challenge throughout the world, and that was why establishing good governance internationally was important, particularly in the aid delivery system, which was often mired by conditionality and not helpful to the countries concerned.

France presented domestic and international efforts to promote good governance, respectively through its national human rights institution, and through its participation to international efforts on the matter by the United Nations and the Organization for Economic Co-operation and Development. Qatar said it had established the context of social responsibility in the provision of social services, and had strengthened its efforts to combat corruption and ensure access to services in accordance with human rights standards. Russian Federation underlined the primary responsibility of States to ensure access to services and to ensure transparency and accountability, and presented its efforts to strengthen good governance, including through the ombudsman. Egypt said good governance was also applicable to the work of international organizations, and presented recent domestic legislation to strengthen accountability, transparency and equal access to services. Tunisia said freedom of expression and access by citizens to information was a crucial element of good governance, and presented initiatives it had undergone to strengthen the links and means of communication between citizens and the administration. India underlined the importance of good governance in international bodies, and presented a website launched by the Prime Minister of India to strengthen good governance and transparency online.

Americans for Democracy & Human Rights in Bahrain Inc said that Bahrain had failed to address multiple forms of corruption, including a compromised legal system, the acceptance of bribes, and the theft of public assets, and asked the panel how the international community could effectively prevent high-ranking government officials from manipulating public institutions for private gains. Arab Commission for Human Rights said that the universal nature of human rights was not a prerogative of certain States only and it was not upon some States to determine the path of all States; cultural particularity must be taken into account and some customs and standards must be protected.
Groupe des ONG pour la Convention relative aux droits de l'enfant, in a joint statement with Geneva Infant Feeding Association; Save the Children International; and Plan International, Inc. said that States needed to mobilize sufficient resources to realize children’s rights, through taxation or otherwise, and put the best interest of the child at the centre of all budgeting decisions.

Comments by Panellists

ANNE PETERS, Director of the Max Planck Institute for Comparative Public Law and International Law, asked Mr. Pastwa to comment on the pragmatic achievement and realization of good governance in public administration.

JAN PASTWA, Director of the National School of Public Administration (Poland), said that harmonization between the measures and goals which should be achieved must be carried out. The pragmatic approach should first provide a framework and budget, and enough personal leadership for those involved in those actions. It was not enough to only have a legal framework, or a budget, but it was essential to have persons involved in actions to achieve the goals. Also important was to set good examples, identify good practices and have an opportunity to exchange them.

ANNE PETERS, Director of the Max Planck Institute for Comparative Public Law and International Law, asked Mr. Mumuni about preventing high-ranking officials from diverting public funds.

ADETOKUNBO MUMUNI, Executive Director of the Socio-Economic Rights and Accountability Project (Nigeria), said that because dealing with grand corruption domestically was hard, it had been suggested to establish an international corruption court, which would deal with cases of personal aggrandisement.

ANNE PETERS, Director of the Max Planck Institute for Comparative Public Law and International Law and moderator, asked how to promote synergies between international financial institutions and the United Nations’ efforts regarding the promotion of good governance.

KIM TAEKYOON, Professor of International Development at the Graduate School of International Studies, Seoul National University, highlighted that international institutions had different views regarding combatting corruption, and encouraged the sharing of good practices on this issue.

ANNE PETERS, Director of the Max Planck Institute for Comparative Public Law and International Law and moderator, asked how to address challenges resulting from outsourcing public services.

SAFAK PAVEY, Member of the Committee on the Rights of Persons with Disabilities, and Deputy Speaker and Member of the Grand National Assembly of Turkey, explained that transparency was a key principle, and highlighted that people from different cultural backgrounds had different perceptions of their relationship with authority, and underlined the importance of investing in cultural change to achieve good governance.

ANNE PETERS, Director of the Max Planck Institute for Comparative Public Law and International Law and moderator, asked how the Human Rights Council could further promote good governance.

MARIANA GONZÁLEZ GUYER, Director of the National Human Rights Institution and Ombudsman of Uruguay, said the Human Rights Council could promote good governance through the Universal Periodic Review and through following up the implementation of recommendations by United Nations human rights mechanisms. National human rights institutions had an important role to play in this regard, and were encouraged to cooperate with civil society actors.

Australia said that ineffective governance was at the heart of all challenges in developing countries and asked about the role of the public service in achieving the Sustainable Development Goals. Georgia was among the first countries to join the Open Government Initiative in 2011 and had made significant progress in the reform of the judiciary and administrative sectors, and was now in the process of reforming institutions. Ireland said that human rights featured prominently in the school curricula and in the police and judiciary training programmes and asked how the Post-2015 Development Agenda could foster a human rights based approach for the delivery of public service. Sierra Leone noted that panellists had highlighted challenges in good governance in public service throughout the world and asked how States could ensure that they had an adequate framework in place. Belgium noted that the issue of good governance was of interest not only to the public but also to the private sector, and wished to see businesses taking significant initiatives to streamline human rights due diligence in their operations. Namibia said that basic social services such as health, education and social welfare services must be equally accessible to all and asked about the prevalence and efficacy of public protectors and anti-corruption bodies in ensuring a human rights-based approach in the public service.

United States stressed the importance of access to basic public services, including to access to persons with disabilities. The United States Government had sought to actively increase persons with disabilities in the federal work force, and today these numbered 13.56 per cent - a number higher than ever before. Singapore today ranked ninth in the Human Development Index. Good governance was critical to Singapore’s competitiveness as it allowed it to organise itself better. Turkey welcomed the panel discussion and said that adopting a human rights based approach was important. To achieve good governance, one of the main points was eradicating corruption. Ghana asked whether the phenomenon of corruption was the biggest impediment to the attainment of full human rights. It also wondered what could be done to make local government as equally attractive to public servants as the national level. Ethiopia said good governance was the right of the governed. The basis of good governance was where the people were able to choose their governor with their free will and non-interference of any external pressure or intimidation. Montenegro said the human rights based approach was essential to the provision of public services. Montenegro was fully committed to building effective institutions. An effective public service was ineffective without civil society.

Agence pour les droits de l'homme expressed concerns about the lack of good governance in Norway and this country’s failure to protect the work of civil society organizations.
Institut international pour la paix, la justice et les droits de l'homme said one of the latest and most flagrant abuses of public service failing human rights had happened in Norway. Despite its leading role in the promotion and protection of human rights, last May, Norwegian police raided GNRD offices, violating many laws. Global Network for Rights and Development highlighted the lack of access to public services by vulnerable groups, and called on States to incorporate human rights standards for the functioning of public services.

Bahrain underlined the importance of good governance and presented services it was ensuring to its citizens. Senegal said it had revitalized its programme on good governance and had created a structure to combat fraud and corruption in 2012, and called for the greater sharing of good practices at the international level.

Azerbaijan said that good governance also included public service delivery. The Azerbaijani Service and Assessment Network focused on promoting good governance, such as transparency, accessibility and public participation and was awarded in 2015 the United Nations Public Service First Place Award. South Africa said in international human rights law, the State had a minimum obligation to establish a regulatory framework with public services on a non-discriminatory basis. Therefore, it became essential that principles of good governance such as for the promotion and protection and fulfilment of all fundamental human rights and freedoms, provided guidance in promoting policy. Ecuador said public services were essential to human rights. Recently, $ 35 million were invested by the Government to build hospitals, schools and decent housing. Combatting corruption was another focus of the Government. Through these improvements people enjoyed more dignity. Estonia believed that good governance could only be based on a responsible, accountable and participatory public service. As part of this, the Estonian Government had elaborated e-government, e-justice, e-schools, and e-taxation. The e-health system facilitated the life of patients. Columbia was seeking to cut red tape through a holistic planning approach and to put in place a solid and simple public service system in order to better communicate with citizens. It also emphasized international cooperation. Algeria said an approach that was based on human rights was crucial. Regarding legal guarantees, Algeria had ratified most international instruments concerning human rights. The decision-making process in the State provided for participation.

Morocco said it had placed good governance as a priority in its public policies and had in place a programme to improve public services, promote a new culture of management of services and human rights, increase transparency, and combat corruption. China said that good quality of public services was a precondition for the enjoyment of human rights and required above all a firm commitment to the rule of law. Iran said that the role of public sectors as a regulator for private service delivery was crucial for the enjoyment and protection of many human rights, and the right to a development based approach to public services was integral to all public service provision. Africa Speaks said although there were differences in understanding the concepts of good governance, there was still an agreement that good governance was key to the promotion and protection of human rights.

Concluding Remarks

ANNE PETERS, Director of the Max Planck Institute for Comparative Public Law and International Law, asked Mr. Pastwa to reply to the question on the role of the public service in delivering the Sustainable Development Goals.
JAN PASTWA, Director of the National School of Public Administration (Poland), said that one important measure that the public service could undertake was to open itself to external stakeholders, and also to use all technical and budgetary means to provide access to justice, educate citizens on how to use their rights, and enhance access to public information. It was also important to show with practical examples the negative impact of corruption on public life and to teach civil servants how to break the vicious cycle of corruption.

ANNE PETERS, Moderator and Director of the Max Planck Institute for Comparative Public Law and International Law, asked the panellists to respond to the second set of questions from African countries about how to make public administration better so that it served the interests of the public.

ADETOKUNBO MUMUNI, Executive Director of the Socio-Economic Rights and Accountability Project (Nigeria), said that practical measures should be adopted to fight corruption. He agreed that corruption was one of the main problems. There had to be effective and strict application of the rules. If these rules were strictly applied, the problem of corruption would be eliminated. All that was needed was strong individuals, not strong institutions.

ANNE PETERS, Moderator and Director of the Max Planck Institute for Comparative Public Law and International Law, asked the panellists to respond to the questions on outsourcing of public tasks to private business. In particular, Belgium had asked regarding the report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie.

MARIANA GONZÁLEZ GUYER, Director of the National Human Rights Institution and Ombudsman of Uruguay, said that in the statements from the majority of countries, reference had been made to measures taken at different national levels, and ways to introduce human rights in anti-corruption efforts. There was a need for proper assessment indicators so that the most positive examples could be picked out for the future. They were looking at how to focus on this topic. Corruption was difficult to combat. On private enterprises and the role they could have in governance, this was an important change going on in a number of countries. The fact that private sector entities were responsible for key services, such as water and sanitation, was an important step. What was needed was a solid State, given that it was responsible for human rights.

ANNE PETERS, Moderator and Director of the Max Planck Institute for Comparative Public Law and International Law, asked the panellists to respond to the question on the challenges for States in terms of increasing access to persons with disabilities.

SAFAK PAVEY, Member of the Committee on the Rights of Persons with Disabilities, and Deputy Speaker and Member of the Grand National Assembly of Turkey, said that turning into a discrimination-free society would achieve good governance, and to do this education was instrumental. Allowing girls and boys, disabled and non-disabled, and people from different ethnic backgrounds to go to school together was the main reform that was needed. Convincing society was one of the most important tasks. Sharing best practices was also important. Two of the best examples on how to improve accessibility were making the building fully accessible at the Palais Wilson, where the Office of the United Nations High Commissioner for Human Rights was headquartered, and enabling sign language in the Human Rights Council.

ANNE PETERS, Moderator and Director of the Max Planck Institute for Comparative Public Law and International Law, asked the panellists to respond to the questions on the international computer environment.

KIM TAEKYOON, Professor of International Development at Graduate School of International Studies, Seoul National University, said that the internet community had emphasized the importance of international aid to support the internet community. He explained three ways of how to support the internet community, including at the domestic level. The Internet was a good way to ask accountability from the Government. There were innovative ways to raise taxes to support public sector reform, and these included taxes on flights, the environment or the lottery.

ANNE PETERS, Moderator and Director of the Max Planck Institute for Comparative Public Law and International Law, concluded that there was a strong idea of using human rights instruments to fight corruption. This could be made into a checkpoint obligatory item to be observed in concluding observations. Another idea was that citizens could be empowered as a watchdog for public service. States could also ratify the Council of Europe Document on Access to Public Documents.

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