(Pix Larry Catá Backer 2017)
By Resolution adopted by the Human Rights Council (A/HRC/RES/32/31 (20 July 2016) E F S A C R) the High Commissioner was requested to prepare a Report:
This post sets out the Submission of the Foundation for Law and International Affairs (FLIA) and the Coalition for Peace & Ethics (CPE) Responding to Call for inputs - Report of High Commissioner - "Civil society space in multilateral institutions". The Submission was the work of a great team of individuals--Flora Sapio, Shaoming Zhu, Keren Wang and me.
To that end, the Office of the High Commissioner for Human Rights invited contributions from national human rights institutions, civil society and other stakeholders for the forthcoming report of the High Commissioner for Human Rights, pursuant to Human Rights Council resolution 32/31 on civil society space. An earlier post included the High Commissioner's "Call for Inputs" and a short discussion of the value of making contributions to that effort (see, Call for inputs - Report of High Commissioner - "Civil society space in multilateral institutions" - Deadline 1 May 2017 ).. . . compiling information on the procedures and practices in respect of civil society involvement with regional and international organizations, including United Nations bodies, agencies, funds and programmes, and the contribution of civil society to their work and challenges and best practices, and in that regard to continue to engage with and seek input from those organizations and entities, as well as the views of States, national human rights institutions, civil society and other stakeholders, and to submit the compilation to the Human Rights Council at its thirty-eighth session (Resolution ¶ 18)
This post sets out the Submission of the Foundation for Law and International Affairs (FLIA) and the Coalition for Peace & Ethics (CPE) Responding to Call for inputs - Report of High Commissioner - "Civil society space in multilateral institutions". The Submission was the work of a great team of individuals--Flora Sapio, Shaoming Zhu, Keren Wang and me.
Joint Submission by
The Foundation for Law and International Affairs (FLIA)
and
The Coalition for Peace and Ethics (CPE) on the
Call for inputs - Report of High Commissioner –
"Civil society space in multilateral institutions"
___________________________________________________
May 1, 2017
BRADFORD SMITH
Office of
the United Nations High Commissioner for Human Rights (OHCHR)
Palais des
Nations
CH-1211
Geneva 10, Switzerland
Dear Bradford Smith,
The Foundation for Law and International Affairs (FLIA) and the Coalition for Peace and Ethics (CPE) welcomed the invitation, from the Office of the High Commissioner for Human Rights, for contributions from national human rights institutions, civil society and other stakeholders for the forthcoming report of the High Commissioner for Human Rights, pursuant to Human Rights Council resolution 32/31 on civil society space. In connection therewith, FLIA and CPE hereby submit the following contribution.
In its
Resolution 32/21 on Civil Society Space, adopted on 1 July 2016, in its
paragraph 18 the Human Rights Council requested the High Commissioner to:
prepare a report compiling information on the procedures and
practices in respect of civil society involvement with regional and
international organizations, including United Nations bodies, agencies, funds
and programmes, and the contribution of civil society to their work and
challenges and best practices, and in that regard to continue to engage with
and seek input from those organizations and entities, as well as the views of
States, national human rights institutions, civil society and other
stakeholders, and to submit the compilation to the Human Rights Council at its
thirty-eighth session.
FLIA and
the CPE are honored to have an opportunity to provide their views on the
premises, structures and frameworks within which it might be possible to speak
to effective civil society involvement with regional and international
organizations. Those premises, in turn,
are grounded in the core principle that such engagement must be undertaken in a
contextually relevant way. More
importantly, such participation should contribute to the continued development
of the political, religious and societal systems within which civil society
operates to ensure that such systems remain true to their own principles and
fulfill their own aspirations. It is in that context only that one might
effectively speak to the established and official ways in which independent
groups of global citizens linked by a common interest can:
(a) obtain
access to United Nations bodies, other regional and international
organizations, programmes and funds;
(b) work
in coordination with regional and international organizations, included United
Nations bodies, in order to reach their respective goals, and bring a
meaningful contribution to the overcoming of shared challenges;
(c) come
to the aid of United Nations bodies in order to contribute to developing
established and official methods of participatory governance, which are
accepted as being effective and correct by the majority of the persons and
institutions who take part to global governance, or else are in any way
affected by it.
FLIA and
the CPE start from the important principle that the aspirational goals
Resolution 32/21 strives towards are dependent upon reaching a consensus about
the notion of a civil society space. The United Nations’ A Practical
Guide for Civil Society – Civil Society Space and the United Nations Human
Rights System,[1]
defines civil society spaces as:
the place civil society actors occupy within society; the
environment and framework in which civil society operates; and the
relationships among civil society actors, the State, private sector and the
general public.
Any
definitional enterprise presents the inherent challenge of resulting in the
placing of conceptual borders and limitations on the object one attempts to
define. To a certain extent, the conceptual borders any definition entails are
designed and then placed around the definiendum,
in ways coherent with the Weltanschauung of those who choose the definiens. This Weltanschauung,
in turn, is the product of specific societal and historical forces, which are
active in some societal and geographical domains, and do not always extend
beyond them. If unmet, this challenge may delay or preempt reaching the goals
of Resolution 32/21. To that end, the procedures and practices in respect of
civil society involvement with regional and international organizations,
including United Nations bodies, agencies, funds and programmes, and the
contribution of civil society to their work and challenges and best practices
must be built on the following core contextually based principles: (1) civil society
space as an aspirational space; (2) civil society space as a multilateral
space; and (3) civil society space admits of diversity and dialogue. Each is discussed below.
Civil Society Space as an Aspirational Space
A space is
an area which is continuous, available, unoccupied or free. Notions of a space as an area delimited by frameworks, already
occupied by a number of actors, and segmented by the relationships existing
among them - whether these relationships are inclusive or exclusive, domestic
or international - are coherent with the
goals of Resolution 32/21. Civil society
space is an aspirational space, marked by a strong element of normativity. In
this sense, a civil society space ought to go beyond:
(a) “the place civil society actors occupy within society”
The position global citizens occupy within their respective
societies is determined by variables and processes beyond the immediate control
of any global citizen and civil society actor. Where variables and processes
are such that only a minority of the public of developed countries can enjoy
access to the educational and other intangible resources needed to gain an
awareness of the existence of the MDGs,[2] the space civil society
actors occupy within developed societies becomes fragmented. Fragmentation
presents its own challenges and opportunities. For developed countries, these
challenges involve re-stitching a social tapestry which is coming undone. For
developing countries and emerging powerhouses of globalization, like China, the
opportunity lies in avoiding constructing a social space prone to such
fragmentation.
(b) “the environment and framework in which civil society
operates”
Civil
society does not operate within any single environment and regulatory
framework. Civil society operates across multiple environments and multiple
regulatory frameworks. Each one of these environments and regulatory frameworks
shape the concrete forms, denominations, definitions, and functions of ‘civil
society’. The construction of a civil society space calls for
acknowledging the legitimacy of each one
of these environments and regulatory frameworks, insofar as they allow for the
existence of various forms of dialogue and the coexistence of multiple forms of
regulatory governance. A civil society space which is truly transparent and
based on dialogue, pluralism and tolerance can exist only if variations in the
social, institutional, and regulatory frameworks within which civil society
operates are seen as the norm.
(c) “the
relationships among civil society actors, the State, private sector and the
general public.”
In any
society, the general public is the very source from which will emerge persons
who will establish civil society organizations, or become members thereof; persons
who will create entities in the private sector, or become members thereof. In
this sense, a civil society space involves no rigid distinction between the
general public and civil society. Where such a distinction exists, it is merely
a functional one, and based upon the consideration that civil society
organizations are first and foremost “active in trying to resolve problems and
address issues that are important to society”,[3] as these issues are
perceived by those directly affected by them. Civil society, the State and the
private sector are a product of the general will of the public, or sectors
thereof. Civil society organizations’ failure to address issue of relevance to
those affected will lead to further fragmentation of the space within which civil
society operates.
Civil Society Space as a Multilateral Space
A space is
an area which is continuous, available, free or unoccupied. As an aspirational space, civil society space extends above and
beyond the place civil society actors occupy within society, the environment
and framework in which civil society operates, and the relationships among
civil society actors, the State, private sector and the general public.
As an
operational space, one which already sees the existence and the activity of the
most diverse forms of civil society organizations, civil society space is
already:
(a) Continuous
The
continuity of civil society space exists whenever two or more civil society
organizations establish links between themselves, operating across regions,
sectors, and countries. Continuity should not be understood as calling for the
abolition of national borders, and of regulatory mechanisms necessary to ensure
a healthy development of civil society. The continuity of a civil society space
is functional. It refers to the provision of services which help maintain the
social fabric and moral fiber of a society intact. Continuity is also
geographic, and refers to the existence of civil society organizations which
help fostering links among citizens, states, private and public actors involved
in processes of transnational economic integration.
(b) Available
A
transnational civil society space is already available to all those sectors of
the general public who are enjoying the fruits of processes of transnational
economic integration, and contributing to them according to their own ability.
The availability of this space, however, is distinct from its accessibility.
While a transnational civil society space exists, this space, as well as all
the development opportunities it offers, are not yet accessible to all the
members of the general public who are entitled to an adequate standard of
living, health, education, housing, science, culture as rights which are unversal,
and indivisible from their civil and political rights.
(c)
Free
Freedom is
a necessary condition for the existence of a civil society space that remains
faithful to itself. In domestic legal orders, there exist restrictions on civil
society – or else domestic civil society organizations are coming to be seen as
agents of subversion of European countries’ economic development.[4] In the broader order of
globalization, however, such restrictions are absent. By its own nature,
globalization is a multilateral, transnational process which cannot be captured
by any single regulatory instrument. Rather, globalization can be regulated
only by a multi-lateral system of rules. This multi-lateral system of rules is
democratic: its creation sees the meaningful participation of all the entities
– citizens, civil society organizations, enterprises, states, international
organizations – who wish to contribute to global peace and prosperity. Also,
while these actors may differ as to their institutional form, resources,
principles and policies, they are morally equal.
(d) Unoccupied
Civil
society space is a transnational space which works for global peace, stability,
and prosperity. This space is not a geographical space: it is a space made by
the webs of bilateral and multilateral rules created by states, by the
transnational links created by civil society organizations, and established by
global citizens. Such a space is potentially unlimited, and will continue to
exist and expand as long as civil society organizations, citizens, enterprises,
and national states will continue to cooperate in all those forms which best
serve mutually beneficial goals.
Civil Society Space Admits of Diversity and Dialogue
Diversity
can display various dimensions. At the individual level, diversity it is
instantiated in the existence of identities which are plural, and unique. At
the aggregate level, the level of a civil society space which is multilateral
and populated by individuals and entities which cannot be easily classified
within any single category, diversity has a different meaning.
In a
transnational and multilateral civil society space, diversity refers to the
unique nature of the form civil society organization can take, to the unique
organizational architecture of enterprises, and to all those features which are
unique to national states, and derive from their culture, history, tradition,
and developmental choices. Plurality in organizational, cultural, political,
historical, and ideological identities ought to be considered as the engine of
a democratic, vibrant civil society space. At a minimum, a civil society space
exists in order to enable a harmonious interaction among persons, civil society
organizations, enterprises, and states who are willing to reject any theory, or
hypothesis, about an inevitable clash between cultures or civilizations. Such a
civil society space belongs to the international community as a common forum
for cooperation, and as a space to avoid fundamentalism, fragmentation, and
segregation.
Diversity
in all its forms can be acknowledged, appreciated, and preserved only through
dialogue. The process of globalization has been enormously accelerated by the
availability of new information technologies and new means of communication.
The rapid development of global communications presents a wealth of
opportunities to promote dialogue across civil society organizations, national
states, and political systems. Such a dialogue can, and does, occur through
multiple platforms and in multiple venues. Traditional fora for dialogue are
being sidelined, if not replaced, by the dynamism of global citizens, civil
society organizations, and national states. Such a pluralism, which is at once
cultural and institutional, is no longer an expression of domestic policies
geared towards social cohesion. Ironically, increasingly fragmented societies
where notions of identity have prevailed upon an appreciation of diversity in
all its forms, are producing global citizens eager to enjoy a broader range of
dialogue options, which are open to everyone, and perhaps not always available
in their domestic contexts.
Diversity,
in this sense, is an essential part of an enabling environment for civil
society. As a broad label for civil, political, social, economic and cultural
rights considered in their inseparability, diversity is an integral part of the
rights of every human person. Thus, the flourishing of a civil society space
calls for the respect not only for the cultural identities of their
participants, but also of the identities of the groups – social, political,
economic – as well as the societies composing the human race. These complex,
multi-layered identities are increasingly being forged through cross-border
interaction among the most diverse individual and institutional actors. They
include not only lifestyles, traditions and beliefs, but also value systems.
Civil
society space is highly vulnerable, and it is shrinking fast especially in
those contexts where artificial limitations are being placed upon the
activities of independent groups of global citizens. These limitations are
indeed regulatory and, as such, are present in all the different guises a
regulatory mechanism can take. Some of these guises consist of legislative
limitations placed on civil society organizations. Others, and far more
insidious, involve limitations to the more intangible rights, goods and
opportunities to enable individuals to enjoy their right to participate in
democratic determination about the future shape of a truly global, multilateral
civil society space. These limitations involve knowledge-production, dialogue,
and education. Only when these latter limitations have firmly been put into
place can limiting legislation, ideologies, or policy approaches be introduced.
In the
interest of global peace and development, the procedures and practices in
respect of civil society involvement with regional and international
organizations, including United Nations bodies, agencies, funds and programmes
should continue to embody the consideration that an aspirational space for
civil society can more effectively be constructed if premised on the values of
democracy, multilateralism, respect for diversity, and dialogue.
Steps Going Forward
From this
discussion of first principles, FLIA and CPE suggest that there can emerge a
better framing of the procedures and practices in respect of civil society
involvement with regional and international organizations, including United
Nations bodies, agencies, funds and programmes, and the contribution of civil
society to their work and challenges and best practices. FLIA and CPE offer the following steps that
move that project forward:
To states:
(1) Every state should ensure that it has clearly developed,
within its own political, social and religious context, a clearly stated and
relevant framework which constitutes a state protected aspirational and
multilateral space within which civil society might develop strong structures
for diversity and dialogue.
(2) Every state must affirmatively declare and embed in its
constitutional order, the objective of recognizing and protecting its civil
society in a manner appropriate to the political order in which the obligation
is realized.
(3) Every state should develop, within its own domestic legal
orders, an institutional architecture through which citizens and residents,
organized as civil society, can be protected.
In addition, this institutional architecture ought to be structured in a
way that permits the state to meet its obligations to its citizens through an
appropriately tailored petitioning process against violation of civil society
space by public and private officials.
(4) Every state must make provision for the exercise of criticism
and self-criticism in the project of meeting its own obligations to protect a
civil society space within the structures of its political order.
(5) Every state should strongly consider the establishment of
special tribunals for the purpose of ensuring that its national and legal
obligations are met with respect to civil society.
(6) States must recognize that civil society is not confined to
the borders of a state and that individuals may join with others across the
globe with respect to shared interests and objectives. The mere fact that civil society may be
globally connected should not, standing alone, affect the status or operations
of civil society within a state.
To international organizations:
(1) International organizations have the principal obligation of
fostering dialogue that helps frame and develop the notions of civil society
space as aspirational space.
(2) International organizations must undertake the difficult task
of providing states, and civil society organs, the technical assistance
necessary for states and others to realize both the nature and extent of their
obligations within their respective constitutional systems and the means
through which these obligatory aspirations may be realized.
(3) International organizations must undertake the difficult task
of calling their members ot account for deviations from consensus standards and
international legal and normative obligations, contextually applied. Likewise, international organizations should
be at the forefront of praising those states and methods that contribute to the
attainment of a vibrant and relevant civil society engagement.
(4) Every civil society organization ought to undertake to review
its own internal operations and methodologies to ensure that each vigorously
implements international standards for the embedding of civil society within
its operations.
(5) The Office of the High Commissioner should undertake to work
with all of the international organizations within the U.N. system to seek to
develop tool kits that may make coherent the policies of all international
organizations with respect to their affirmative engagement with civil
society. The object of this exercise is
to ensure that the United Nations, through its organizations, acts consistently
and uniformly in its engagement with civil society.
(6) International organizations and political life are
substantially different in scope and operation, from that of the nation states
that compose its principal membership.
It is inappropriate to transpose national predilections, national
ideologies, and national practices to the international sphere. To that end the United Nations ought to
undertake a broad review of those constraints and restrictions that make
participation by civil society in the work of the organs of the United Nations
burdensome or that unduly restrict access by such organizations to the work of
U.N. organizations.
(7) Until the United Nations practices what it preaches, as an
autonomous set of organizations, separate from the various states that comprise
it membership but which do not, singly or in groups control or dominate it, it
will be difficult for it to set the high aspirational standards that should
serve as a model for its members. At the same time, the United Nations owes its
members a substantial margin of appreciation to embed civil society in a manner
consistent with national political organization.
(8) In the face of impunity and complicity, it may be necessary
for the international community to amend the Rome Statute and expand the
jurisdiction of the International Criminal Court, to include all acts of
violence against civil society members who do not otherwise offend national or
international standards.
To civil society:
(1) Civil society must undertake the difficult task of
articulating its own framing responsibilities.
These include fundamental responsibilities to respect the state and
state systems in which they operate and also to ensure that they legitimately
serve the interests of those individuals and causes they represent. Such obligations ought to be clearly
articulated and closely monitored.
(2) Where civil society undertakes efforts that challenge the
legitimacy of states or state systems, it engages in activity that can only be
protected to the extent that it does not threaten the existence of the
state. Beyond that point civil society
might act, but it becomes a political
and revolutionary actor, and subject to relevant international law.
(3) Civil society must be prepared to act in accordance with the
standards of transparency they would apply to states, enterprises and
international organizations.
(4) Civil society should have unfettered access to the workings of
international organizations, but that access ought to give rise to an
obligation to engage with states and international organizations in ways that
are appropriate in context.
(5) Civil society ought to be able to rely on the application of
all international law and norms in its interactions with international
organizations without fear of retaliation either through international
organizations or by home or host states. International organization space ought
to be protected space; if international organizations cannot maintain the
safety of their own spaces they also fail in their fundamental mission to serve
as a protected nexus point where states and other actors may meet to engage,
and thus engaged to reduce the threat to world peace and stability.
__________
The Foundation for Law and International Affairs (FLIA) is an independent, nonpartisan, nonprofit organization mandated
to promote academic and public discourse at the intersection of law and
international affairs. The core vision of FLIA is to promote international
cooperation and public dialogue through the development of new ideas and
collaboration with various academic, governmental and civil actors.
The Coalition for Peace & Ethics (CPE), founded in 2006, is an independent, non-profit, non-partisan, tax-exempt research and information focused organization. CPE avoids ideology, adopts no specific political or religious doctrine, and owes allegiance to no master. We are engaged in a series of projects based on the production and dissemination of knowledge that is meant to empower people to take control of their own lives for personal and societal betterment in ways that are respectful to individuals and the communities in which they belong.
[1] Office of the High Commissioner for
Human Rights, A Pratical Guide for Civil Society, Civil Society Space and
the United Nations Human Rights System. Geneva, at p. 5. Available from http://www.ohchr.org/Documents/AboutUs/CivilSociety/CS_space_UNHRSystem_Guide.pdf
[2] The transnational NGOs Five Talents,
for instance, reported how according to “surveys found that in September 2015
only 4% of the UK public had heard of the MDGs.” See “Meet the Sustainable
Development Goals”, Five Talents, available at https://www.fivetalents.org.uk/un-sustainable-development-goals/
According to its own description, Five Talents is an organization working in
rural areas of East Africa to enable those who have no access to financial
services to set-up and grow the small, often vulnerable, businesses they depend
on.
[3] Office of the High Commissioner for
Human Rights, A Pratical Guide for Civil Society, Civil Society Space and
the United Nations Human Rights System. Geneva, at p. 4. Available from http://www.ohchr.org/Documents/AboutUs/CivilSociety/CS_space_UNHRSystem_Guide.pdf
[4] Giuseppe di Lorenzo, “Here’s how NGOs
want to use migrants to destabilize Italian economy” (Così le ONG vogliono
destabilizzare l’economia italiana coi migranti), Il Giornale, 27 April
2017, available from http://www.ilgiornale.it/news/politica/cos-ong-vogliono-destabilizzare-leconomia-italiana-con-migranti-1390533.html
See also “Italy Migrant Crisis: Charities ‘colluding’ with smugglers”, BBC, 23
April 2017, available from http://www.bbc.com/news/world-europe-39686239
Bethan McKernan, “Charities saving refugees in the Mediterranean are
‘colluding’ with smugglers, Italian prosecutor claims”, The Independent, 24
April 2017, available from
http://www.independent.co.uk/news/world/europe/refugee-boat-rescue-charities-medicins-sans-frontieres-save-the-children-mediterranean-sea-migrants-a7699571.html
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