Respond to the questionnaire from the Independent Expert on the promotion of a democratic and equitable international order

 

 

The Civil Society Section of the Office of the United Nations High Commissioner for Human Rights is circulating the following set of questions for comment sent out by Alfred M. de Zayas, the Independent Expert on the promotion of a democratic and equitable international order:

We are pleased to forward this questionnaire from the Independent Expert on the promotion of a democratic and equitable international order.

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Nous avons le plaisir de vous transmettre le questionnaire de l'Expert Indépendant sur la promotion d'un ordre international démocratique et équitable.

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Tenemos el agrado de remitir este cuestionario de la Experta Independiente sobre la promoción de un orden internacional democrático y equitativo.

An Independent Expert is a Special Procedure mechanism appointed by the Human Rights Council to examine and report on a specific human rights issue or theme. This position is honorary and the expert is not United Nations staff nor paid for his/her work. For more on Special Procedures, please refer to Fact Sheet N° 27: Seventeen Frequently Asked Questions about United Nations Special Rapporteurs (PDF).

The overview of the Mandate, and links to article follows.  One gets a sense of what Mr. Zayas is up to from a recent speech, also set out below.  Interested parties might find it useful to supply an answer to the questionnaire, especially those who might seek to broaden the conceptual perspective at the foundation of this project, especially with respect to the role of business and civil society in this enterprise.  To do otherwise is to consign this effort, like so many others, to the late 19th century--a charming enough epoch, and one that was at least brimming with the elegant possibilities of the full ripening of the state system, but one which might prove less comprehensively useful in the world as we find it today:

Independent Expert on the promotion of a democratic and equitable international order

Overview

According to the resolution 18/6, a democratic and equitable international order requires the realization, inter alia, of the following:

1. The right of all peoples to self-determination, by virtue of which they can freely determine their political status and freely pursue their economic, social and cultural development;
2. The right of peoples and nations to permanent sovereignty over their natural wealth and resources;
3. The right of every human person and all peoples to development;
4. The right of all peoples to peace;
5. The right to an international economic order based on equal participation in the decision-making process, interdependence, mutual interest, solidarity and cooperation among all States;
6. International solidarity, as a right of peoples and individuals;
7. The promotion and consolidation of transparent, democratic, just and accountable international institutions in all areas of cooperation, in particular through the implementation of the principle of full and equal participation in their respective decision-making mechanisms;
8. The right to equitable participation of all, without any discrimination, in domestic and global decision-making;
9. The principle of equitable regional and gender-balanced representation in the composition of the staff of the United Nations system;
10. The promotion of a free, just, effective and balanced international information and communications order, based on international cooperation for the establishment of a new equilibrium and greater reciprocity in the international flow of information, in particular correcting the inequalities in the flow of information to and from developing countries;
11. Respect for cultural diversity and the cultural rights of all, since this enhances cultural pluralism, contributes to a wider exchange of knowledge and understanding of cultural backgrounds, advances the application and enjoyment of universally accepted human rights across the world and fosters stable, friendly relations among peoples and nations worldwide;
12. The right of every person and all peoples to a healthy environment and to enhanced international cooperation that responds effectively to the needs for assistance of national efforts to adapt to climate change, particularly in developing countries, and that promotes the fulfilment of international agreements in the field of mitigation;
13. The promotion of equitable access to benefits from the international distribution of wealth through enhanced international cooperation, in particular in economic, commercial and financial international relations;
14. The enjoyment by everyone of ownership of the common heritage of mankind in connection to the public right of access to culture;
15. The shared responsibility of the nations of the world for managing worldwide economic and social development, as well as threats to international peace and security, that should be exercised multilaterally.

Mandate

1. To identify possible obstacles to the promotion and protection of a democratic and equitable international order, and to submit proposals and/or recommendations to the Human Rights Council on possible actions in that regard;
2. To identify best practices in the promotion and protection of a democratic and equitable international order at the local, national, regional and international levels;
3. To raise awareness concerning the importance of promoting and protecting of a democratic and equitable international order;
4. To work in cooperation with States in order to foster the adoption of measures at the local, national, regional and international levels aimed at the promotion and protection of a democratic and equitable international order;
5. To work in close coordination, while avoiding unnecessary duplication, with intergovernmental and non-governmental organizations, other special procedures of the Human Rights Council, international financial institutions, as well as with other relevant actors representing the broadest possible range of interests and experiences, within their respective mandates, including by attending and following up on relevant international conferences and events;
6. To integrate a gender perspective and a disabilities perspective into his or her work;
7. To report regularly to the Human Rights Council and the General Assembly in accordance with their respective programmes of work;
8. To support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world.

The Independent Expert presented his first report to the Human Rights Council at its 21st session in September 2012, and to the General Assembly at its 67th session in October 2012.

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Articles and Opinion

• UN Panel on Camp Liberty, Opinion of the Independent Expert, 28/2/2013
  
• Open-ended working group on the right to peace, Opinion of the Independent Expert, 14/2/2013
  
• Expert closed meeting on "The AC declaration on the right to peace", Opinion of the Independent Expert, 26/11/2012

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Statement by Alfred-Maurice de Zayas, Independent Expert on the promotion of a democratic and equitable international order at the 68th session of the General Assembly

New York, 28 October 2013

Mr. Chairperson,

Distinguished delegates,

Ladies and gentlemen,

It is my honour to submit this progress report to the General Assembly in accordance with Resolution 67/175. The report should be read together with my report to the Human Rights Council, presented on 10 September 2013 pursuant to Human Rights Council Resolution 21/9, which focuses on other aspects of the mandate and contains fourteen important annexes.

In this report to the Assembly I summarize activities undertaken from August 2012 to July 2013, and endeavour to address some of the issues specifically raised in creating the mandate, which I understand as global in geographical scope and multi-level in conceptual approach. As the resolutions indicate, the goal is convergence of civil, cultural, economic, political and social rights into a coherent synthesis that will advance the process of achieving an international order that is more democratic and equitable.

The vast scope of the resolutions manifests the bold vision of the Human Rights Council and General Assembly and calls for the formulation of pragmatic recommendations.
My reports identify manifold obstacles to the realization of a democratic and equitable international order and propose reforms to the United Nations institutions so as to make them more democratic, making participation in the Bretton Woods more equitable and representative, bringing transnational corporations under UN scrutiny, so as to enhance both transparency and accountability.  Domestically, I call for greater use of the instruments of direct democracy.

Undoubtedly Peace is a condition to realizing a democratic and equitable international order.  Humanity’s best hope thus remains a revitalized United Nations and a pro-active General Assembly that will deploy preventive strategies and henceforth implement the pledge to spare humanity from the barbarity of war more effectively.  It is time for the UN General Assembly, as the most representative world body, not only to voice the international community’s rejection of war and war-mongering, but also to develop early warning mechanisms to detect and neutralize disinformation, insidious propaganda for war and the panoply of pretexts used by some States to justify the use of force.

Similarly, the UN Secretary General could use his good offices and deploy preventive strategies against the uncontrolled dynamics of war propaganda.  He can exercise a more proactive role in referring belligerent tensions not only to the Security Council but also to the General Assembly and to the Human Rights Council, bearing in mind that armed conflicts always impact negatively on the most fundamental human rights. In this context the creation of the function of a Special Advisor to the Secretary General on the prevention of war and the suppression of war-mongering could be considered.

Indeed, the irresponsible war-mongering of sensationalist media that beat the drums of war instead of discussing possibilities of negotiated settlements is a global problem that demands global solutions.  Whereas propaganda for war constitutes a violation of article 20 of the International Covenant on Civil and Political Rights, this provision is frequently ignored.  Recently there have been dangerous moments when the threat of the use of force outside the permitted scope of the UN Charter hung over the world as the sword of Damocles, where an emotional media-hype for war seemed to be dragging the world toward an even graver humanitarian catastrophe. Strategies must be devised so as to counter manipulation of public opinion aimed at rendering the use of force plausible and socially acceptable.

In this context, the Human Rights Council has been considering a Draft Declaration on the Right to Peace1 which, when adopted by the General Assembly, will contribute to developing a culture of dialogue and non-violence. This Declaration recognizes peace not only as a principle but as a human right with collective and individual dimensions, grounded in the Universal Declaration of Human Rights and the core UN human rights treaties. There is no doubt that human beings want to live in peace, as would be conclusively proven if world referenda were to be held. The International community represented in this General Assembly should take up the challenge and give authority and legitimacy to the universal effort to overcome the vicious circle of violence and reprisal, of an eye for an eye, of discrimination and hate.  Peace is not the silence of cemeteries, the making of desert landscapes called peace2, but rather the song of social justice.

Pursuant to our conviction that democracy promotes peace, Parliaments in all countries should live up to their democratic potential, become more representative and more responsive to the will and needs of populations and not to the demands and pressures of special interests. In this respect, the General Assembly may wish to proclaim a World Parliament Day to be observed each year, so as to give greater space to civil society and its representatives, both domestically and internationally, and listen to the concerns and priorities of civil society. Consistent with the Cardoso Report3 on United Nations-Civil Society Relations, and with innovative thinking by numerous scholars, I believe that the establishment of a United Nations Parliamentary Assembly4 with consultative powers would advance the democratic agenda.  Such an assembly could be initially composed of Parliamentarians from UN member States and observer States and subsequently of directly elected representatives.  Since 2007 the campaign for an UNPA has been endorsed by more than 1000 members of parliaments and numerous other stakeholders hailing from over 100 countries.  The fundamental purpose of the Assembly will be to give the world’s citizens a voice at the United Nations through more direct representation. Delegates would be accountable to their constituencies and not to their governments.  An UNPA could be set up as a subsidiary body of the UN General Assembly pursuant to article 22 of the Charter, and could contribute significantly to a democratic and equitable international order by enhancing public participation in domestic and global decision-making.  A study on the added value of such a body and the modalities of its creation would be welcome.

The world financial crisis and its sequels pose many problems for the implementation of a just international order.  It should be remembered, however, that the financial crisis is also a moral crisis, and a crisis of priorities.  Bearing in mind that Planet Earth is undoubtedly rich and has enough resources to satisfy the needs of all human beings, including their right to food and clean water, one must ask oneself whether the so-called financial crisis is not artificial. Observers have proposed solutions, notably a significant reduction in the arms trade, which fuels wars and corruption throughout the world.  In this context the adoption by the General Assembly of the Arms Trade Treaty in April of this year5 is to be applauded. Further steps toward the regulation and reduction of the arms trade as well as toward meaningful disarmament should be undertaken.  A reduction of military expenditures is the key to achieving the Millennium Development Goals and ensuring the success of the post-2015 development agenda.

If there were fiscal and budget transparency and if the population of each country could exercise the democratic right to set the priorities of State, there would be no extreme poverty and no hunger in the world. It is obscene to cut funds for education and for health care when there is enough money to bail-out the private sector financial institutions which were responsible for the financial crisis in the first place.  It is obscene to cut social services, when money is being squandered in armaments.  Moreover, the so-called “austerity measures” constitute retrogression in human rights and as such violate articles 2 and 5 of the International Covenant on Economic, Social and Cultural Rights.

Another obstacle to the realization of a democratic and equitable international order is the prevalent culture of competition without solidarity. There seems to be a globalisation of indifference, a globalization of injustice and inequity pervading the financial markets and financial institutions.  Competition must always respect the rule of law and the principle of proportionality.  Moreover, universal solidarity must be understood broadly as meaning not just technology transfer and the exchange of goods but also the exchange of ideas and cultural rapprochement. We can all learn from each other.  There is no country in the world that is so poor that it has nothing to share6.

In this context, it is appropriate to embrace a holistic approach to human rights, which are not limited to those rights that are good for business, that promote commerce and consumerism. A just international order must first and foremost recognize that the codified human rights are only a mode d’emploi to the higher aspiration of every woman and man to achieve our potential, to live our lives in peace and security, to deploy our transcendence -- in other words to live human dignity in daily life, in practice, not in just in theory.  The vocation of my mandate is thus to exemplify what human dignity entails in human exchanges, in promoting development, equal opportunity, and also in business and trade.  

To those States who have made considerable progress in implementing civil, cultural, economic political and social rights, I would like to say – do not rest on your laurels, but continue in that direction, since human rights is work in progress, not just the “flavour of the month”, but a daily commitment  to human dignity.  Each country must continually monitor and reform.  The World is certainly grateful for yesterday’s achievements, but in order to achieve an international order that is more democratic and equitable, individual and collective efforts by civil society and the international community are necessary.

There is no lack of diagnoses of the manifold ills that beset the international order, coherent and even convincing diagnoses by foremost think-tanks and universities and outstanding individual researchers all over the world.  Obstacles to an improved world order are all too evident, but remedies do not materialize.  Is it because the real power no longer resides in States and Governments but rather in the economy, the intelligence community,  the military-industrial and the financial-industrial complexes, which are impervious to reasons other than power or profit?  Are contemporary philosophers, political scientists, economists, demographers and investigative journalists thinking in old paradigms, locked into self-imposed thinking limitations, and thus proposing changes for an obsolete international order?  Will the new information technologies, social media and heightened sensibilities give rise to new approaches and solutions? Observers point to the waning importance of the traditional State vis-à-vis the growing power of transnational corporations and global financial institutions, all taking decisions that affect billions of people without transparency or accountability.

How is the international community dealing with evolving global trends? How can civil society domestically and internationally promote human rights, including the right to privacy and the freedoms of opinion, expression and peaceful assembly?  It has been suggested that the entrenched weight of capital-based systems (technological, infrastructural, economic and military), that are themselves influenced by geographical, linguistic, national and social constraints, produces not merely inertia but their own bottom-up dynamic order that a top-down international order will find hard to reshape along whatever consensus is reached. These systems are largely disjointed from the global context. An evolution in civil society values might make a difference, and arguably has done in previous decades to some extent, but they would then need to enter into and operate within the logic of the system itself. Yet, if that were to happen, it would similarly require those operating at the level of the international order to affirm the exercise of those values, and not maintain a diplomatic silence when push comes to shove at particular pressure points and junctures7.

Essential to advance a democratic and equitable international order are the rights of access to information, to freedom of opinion and the expression, freedom of online and offline media.  In this context I strongly endorse the reports of the Special Rapporteur on Freedom of Opinion and Expression concerning freedom of the internet as well as his reports on State surveillance8. There must be effective guarantees that individuals and civil society can exercise their right to seek and impart information as guaranteed in article 19 ICCPR, and that human rights defenders, including whistleblowers, are not persecuted or prosecuted, because in a very real sense they perform an  important function as watchdogs and thus serve protect the human rights of all9.

The United Nations University is publishing this month a book by Professor Joseph Schwartzberg entitled Transforming the United Nations System: Designs for a Workable World.  The book discusses the need for voting reform in the General Assembly, the possibility of a weighted voting system, options on how best to reform the Security Council, increasing its membership and eliminating the veto, a transformation from ECOSOC to a new structure of regional caucuses, a strengthened Human Rights Council, the coordination of UN Specialized Agencies and Special UN Commissions and Funds, enhanced participation of non-governmental organizations and other non-State actors, etc. In the opinion of the Independent Expert, this book, replete with statistics and tables, provides a credible architecture for global governance and explains how to go about  reforms that will advance the goal of building a democratic and equitable order.

Mr. President,

Human Rights Council Resolution 18/6 created a broad mandate that is coherent and implementable. All United Nations bodies and specialized agencies are invited to review their practices with a view to enhance participation of all stakeholders. Each State should take one step forward and review domestic obstacles to democratic processes and equity and implement targeted measures that will promote participation by all persons under its jurisdiction. This requires a change of paradigm and mindset, goodwill and self-criticism. Complacency is invariably an obstacle to progress.

The diagnoses of other Rapporteurs are accurate, their recommendations implementable, and yet there is little or no change in the structures of society, in the distribution of wealth, in the possibility to participate in decision-making and actually carry out necessary reforms.

Whereas in my initial report to the General Assembly I preferred not to formulate recommendations, I believe it is appropriate at this stage to make a number of suggestions, based on the pertinent Council and GA resolutions and resulting from consultations, responses to questionnaires and the analysis of obstacles and good practices contained in this  and prior reports. 

Convinced that hackneyed prescriptions, platitudes or cosmetic proposals will not serve the realization of GA Resolutions 67/175, 66/159, 65/223, 64/157, 63/189, 61/160, 59/193, 57/213 and 56/151, I offer these pragmatic recommendations:

• States should persevere in efforts to reform the United Nations system with a view to make it more democratic and equitable, in particular the Security Council, so that it better reflect the needs and priorities of present and future generations instead of the 1945 world order. The General Assembly should be revitalized and made more democratic and representative.  Complementing it with a consultative United Nations Parliamentary Assembly could be a meaningful step toward achieving this goal.
• States should abandon unilateral actions that impact adversely on a democratic and equitable international order and avoid over-reliance on “positivism” and efforts to circumvent treaty obligations or find loopholes therein.   As “nature abhors a vacuum”10, human rights law abhors “legal black holes”.
• States should revise their budgetary priorities away from military expenditures and into the promotion and protection of human rights for all.  In so doing, States should ensure fiscal and budget transparency and facilitate participation by civil society in decision-making processes.
• The General Assembly should promote the equitable participation of all States in the World Bank and the International Monetary Fund, for instance by placing these institutions under the authority of the United Nations and subordinating them to the Purposes and Principles of the Charter, pursuant to Articles 57 and 63 thereof.
• The General Assembly may consider expanding the mandate of the Human Rights Council to allow examination of reports from financial institutions, the World Trade Organization and also transnational corporations under a modified UPR procedure.
• States should repeal legislation that intimidates  and criminalizes citizens in the exercise of their human rights  including with regard to the establishment of political parties, non-governmental organizations, freedom of peaceful assembly and association, the right to access to information, the right freely to debate and express one’s own opinions . States should implement paragraph 49 of General Comment 34 of the Human Rights Committee, which rejects so-called “memory laws” as incompatible with article 19 of the Covenant. 
• The General Assembly should revisit the rules granting consultative status to NGO’s so as to enhance the opportunity of independent civil society to interact with the Council and other UN bodies.
• The General Assembly may consider referring specific legal questions to the International Court of Justice for advisory opinions, including issues of self-determination, unilateral coercive measures, threats and use of force, etc.
• The General Assembly may consider revisiting the reality of self-determination in today’s world and refer to the Decolonisation Committee pertinent complaints by indigenous communities. It my consider convening a World Conference on self-determination in which all indigenous communities, peoples living under occupation and non-represented people can be heard.
• The General Assembly may consider mandating the Human Rights Council to entrust one of the existing special procedures with monitoring the impact of unilateral coercive measures on the enjoyment of human rights and to ensure accountability in this regard.  

Mr. President,

I am aware that not all States will agree with the menu of recommendations I proposed, but two things I can assure you of:  My commitment and my independence, for the essence of being an independent expert is not only the expertise, which is conscientiously assessed by this Council before appointing rapporteurs, but the capacity to carry out the mandate free of intimidation or interference, free of thinking barriers, or of the filter of political correctness.

An independent expert would fail the mandate, the Council and the General Assembly if he or she were only to rehash existing wisdoms and engage in rhetoric that merely confirms the status quo. The essence of the independent expert is independence to think outside systems, beyond prejudices, and the confidence to formulate concrete reform proposals.

You will have noticed that my reports do not engage in naming and shaming.  Personally, I believe that this practice has relatively little effect, because it rests on a number of fallacies:

• first, that the party doing the naming has nothing to be ashamed of and possesses moral authority to shame the other;
• second, that the impugned party is generally open to criticism;
• and third, that the target of the naming and shaming acknowledges the legitimacy of the namer to act as judge.

Experience shows that the namer often has a closet full of skeletons and that therefore the target of the naming and shaming has no inclination to bow to the namer's pretense to moral superiority or justification to hurl the first stone at the adulteress. Instead of raising fingers and pointing at others, it would be better if those States and NGO's who claim to know better would instead offer advisory services and technical assistance so as to help impugned States to improve their human rights practices and infrastructures, in a spirit of international solidarity.

What we urgently need is good faith, more mirrors of self-criticism, more focus on root causes and prevention, greater readiness to dialogue without preconditions, patience and perseverance -- and much less eagerness to verbally condemn or judicially punish -- above all, we need more compassion toward the victims, a commitment to redress wrongs and a genuine effort at preventing the recurrence of abuses.

The all-too-frequent instrumentalization of human rights for political purposes and the abuse of the concept of human rights as a selective weapon against others demonstrates how little we have understood of the essence of human dignity -- which entails respect for the other person's identity, diversity and his/her right to hold different opinions. Humanity needs neutral brokers, not polemics nor rhetoric with geopolitical after-taste. We need intellectual honesty -- not international law à la carte.

By way of conclusion, I look forward to continued consultations with States, National Human Rights Institutions and civil society and listening to your remarks and criticism, which I pledge to integrate into my subsequent reports.

I also wish to express my appreciation to the Secretariat of the Office of the UN High Commissioner for Human Rights in Geneva, which has supported my mandate with commitment, competence and professionalism.  I salute their grace under pressure, their devotion to the cause of human rights and encourage the Fifth Committee of the General Assembly to give more resources to OHCHR, whose staff is demonstrably overstretched.  An investment on the Office of the High Commissioner is an investment for all of us and for future generations.  

I thank you.

Notes:

1. http://www.ohchr.org/EN/HRBodies/HRC/RightPeace/Pages/WGDraftUNDeclarationontheRighttoPeace.aspx

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13030&LangID=E

2. Tacitus, Agricola “solitudinem faciunt, pacem appellant” (they make a desert and call it peace)
3. A/58/817 Report of the Panel of Eminent Persons on United Nations- Civil Society Relations
4. On 16-17 October 2013 a Conference was convened by the European Parliament to discuss this initiative to which the Independent Expert contributed a paper of the right to public participation. The Brussels Declaration outlining the strategy of the campaign for a UN Parliamentary Assembly was adopted on 17 October 2013.   http://www.unpacampaign.org/documents/en/BrusselsDeclaration.pdf
5. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13207&LangID=E
6. Reports of the Independent Expert on International Solidarity, Virginia Dandan, in particular the Draft Declaration on the Right of Peoples and Individuals to International Solidarity.
7. Dr. Kevin Madders, forthcoming publication “The Challenge”.
8. http://www.un.org/apps/news/story.asp?NewsID=45075&Cr=freedom+of+expression&Cr1#.UfY3-6wasSk
9. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13704&LangID=E
10. Spinoza, Ethics.