UN Human Rights Treaties

Distr.
GENERAL
E/CN.4/Sub.2/1992/SR.31
31 August 1992
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND
PROTECTION OF MINORITIES
Forty-fourth session
SUMMARY RECORD OF THE 31st MEETING
(FIRST PART*)
Held at the Palais des Nations, Geneva,
on Tuesday, 25 August 1992, at 3 p.m.
Chairman: Mr. ALFONSO MARTINEZ
later: Mr. CHERNICHENKO
CONTENTS
Review of further developments in fields with which the Sub-Commission has
been concerned (continued)
Review of the work of the Sub-Commission (continued)
* The summary record of the second (public) and third (closed) parts
of the meeting appear as document E/CN.4/Sub.2/1992/SR.31/Add.1 and Add.2
respectively.
This record is subject to correction.
Corrections should be submitted in one of the working languages. They
should be set forth in a memorandum and also incorporated in a copy of the
record. They should be sent within one week of the date of this document to
the Official Records Editing Section, room E.4108, Palais des Nations, Geneva.
Any corrections to the records of the public meetings of the
Sub-Commission at this session will be consolidated in a single corrigendum,
to be issued shortly after the end of the session.
GE.92-13717/4832B (E)
The meeting was called to order at 3.15 p.m.
REVIEW OF FURTHER DEVELOPMENTS IN FIELDS WITH WHICH THE SUB-COMMISSION HAS
BEEN CONCERNED (agenda item 4) (continued) (E/CN.4/Sub.2/1992/4, 5, 6, 7 and
Add.1, 8, 9 and Add.1 and 10; E/CN.4/Sub.2/1992/NGO/8, 9, 10 and 18;
E/CN.4/Sub.2/1991/55; E/CN.4/1990/56; E/1992/67; A/47/289)
1. Mrs. KSENTINI said that she wished to comment on the second progress
report submitted by Mr. van Boven on the right to restitution, compensation
and rehabilitation for victims of gross violations of human rights and
fundamental freedoms (E/CN.4/Sub.2/1992/8). She hoped that in his future
reports the Special Rapporteur would devote more attention to the question
of the compensation to be accorded, not merely to individuals, but also to
oppressed peoples who had been the victims of racism, exploitation and colonial
or foreign domination, or whose natural resources had been plundered. In that
regard, she supported the remarks made by Mrs. Mbonu regarding victims of
slavery in Africa.
2. She drew the Special Rapporteur's attention to the two specific
recommendations made by the Working Group on Contemporary Forms of Slavery in
its report (E/CN.4/Sub.2/1992/34) with regard to the possibility of reparation
and compensation, the first in the context of the persistence of slavery-like
practices (para. 118), the second requesting the Special Rapporteur to make
recommendations in connection with contemporary forms of slavery and to take
into account the need for moral compensation for victims of the slave trade
and other early forms of slavery (p. 24).
3. She also invited the Special Rapporteur to take note of various recent
developments at national level. In many developing countries that had been
victims of colonial domination, associations were being formed to assert the
right to moral and other compensation. In Algeria, an "8 May 1945 Foundation"
had been formed, with the objective of breaking the conspiracy of silence
surrounding war crimes and crimes against humanity committed in the colonial
era. Its aims included assessment of the material and moral damage inflicted,
and of appropriate compensation. It also sought to have crimes committed in
such circumstances recognized as crimes against humanity which were not
subject to any statute of limitations.
4. Mr. KOVEN (World Press Freedom Committee) said that the groups his
organization represented were not lawyers' groups or general human rights
organizations that felt constrained to weigh the relative values of different
freedoms, but journalistic practitioners who knew from bitter experience
that freedom of expression and its main channel, freedom of the press, were
essential to the exercise of all other liberties. The final report by
Mr. Türk and Mr. Joinet on the right to freedom of opinion and expression
(E/CN.4/Sub.2/1992/9) leant heavily on permissible restrictions listed in the
International Covenant on Civil and Political Rights. The opportunities it
offered to would-be press restricters were so obvious that the Special
Rapporteurs themselves repeatedly stressed the dangers of abuse inherent in
those broad and ambiguous categories. For example, they stated that, in view
of the vagueness of the idea of public order, there was a great temptation to
dictatorship that could be justified by the Covenant. They stated that the
use of loose concepts and excessively broad or catch-all formulations might
give the State unduly large discretionary powers, thereby opening the door to
violations of human rights. Yet, oddly enough, in their conclusions they
failed to heed their own warnings, instead introducing four new broad and
fuzzy criteria according to which restrictions on freedom of expression might
in their view be justified, namely: legitimacy, legality, proportionality and
democratic necessity. There was a well-known adage that patriotism was the
last refuge of a scoundrel. Would the world now see a new refuge in the
notion of "democratic necessity"?
5. It was precisely because of the dangers inherent in the ambiguities of
the Covenant that, when the United States of America had finally ratified that
text in the spring of 1992, after many years of richly justified hesitation,
the Government had entered a reservation on the restrictions it permitted to
freedom of expression. Other countries had entered similar reservations. Yet
none of those reservations was mentioned by the Special Rapporteurs. With the
end of the cold war and the new ground gained by democracy, it should now be
obvious that the kinds of restrictions contained in the Covenant had been the
fruit of compromise with authoritarian regimes. Dissidents like Solzhenitsyn,
Sakharov, Havel and Walesa had been silenced in the name of concepts like
public order, national security and democratic necessity. The Commission on
Human Rights should now be working to negate such unworthy compromises, not to
enshrine their new use in the greatest era of democratic advance since 1848.
He had the utmost respect for the intellects and probity of the Special
Rapporteurs. But they needed to break away from the traditional world view
which he had characterized in earlier debates in the Sub-Commission as "the
rage to codify", which led them to try to establish a hierarchy of rights.
To them, freedom of opinion was absolute, but freedom of expression was
relative. In other words, one should not be subjected to the action of the
Holy Inquisition on account of one's views; but in certain circumstances it
was conceivable and it could be legitimate to silence criticisms of the
activities or of the office of the Grand Inquisitor. That might seem like a
caricature of the authors' intentions; but not everyone who followed their
reasoning could be counted on to be motivated by the same democratic good
intentions. He did not think he was caricaturing the potential effects of
their conclusions.
6. While nothing in practice could be perfect or absolute except an ideal,
one could not hope to approximate to perfection unless one set such ideals.
The Special Rapporteurs stated that it was essential to develop the view that
States had a positive obligation to ensure respect for the right to freedom
of expression. For that very reason, his organization and its associated
groups had drawn up a 10-point Charter for a Free Press that enjoined
Governments to refrain from such practices as censorship, control of news
media, discrimination against independent media, restriction of access to the
means of dissemination, restrictive visa practices against news gatherers, and
licensing or other restrictions on the practice of journalism. Copies of the
Charter were available to participants in French and English.
Rights, the Charter stated that its principles of unfettered flow of news
and information both within and across national borders deserved the support
of all those pledged to advance and protect democratic institutions. The
Sub-Commission should adopt that positive and constructive approach, rather
than enumerating permissible restrictions on freedom of speech and press
freedom. It should surely seek to enlarge the sphere of freedom rather than
to define its limits.
8. The tenth and concluding point of the Charter for a Free Press stated:
"Journalists, like all citizens, must be secure in their persons and be
given full protection of law." That was why his organization supported the
recommendation by Mr. Türk and Mr. Joinet that a special rapporteur should be
appointed, or some other appropriate mechanism established, to spotlight the
growing number of deliberate threats to the security of journalists working to
inform society. But his organization could not in conscience approve of the
authors' call for a new cataloguing of admissible restrictions on freedom of
expression and of the press. Neither the Sub-Commission nor its parent body
should embark on such a dangerous undertaking. As the Special Rapporteurs
themselves wisely said, history taught that restrictions had an unfortunate
tendency to spread beyond the limits within which they had originally been
conceived. That, he submitted, should have been the conclusion of their
exercise. If that exercise had been a purely academic one, with no practical
consequences, it had no place in that forum. If it was intended to have
practical application, the potential for misapplication was truly alarming.
9. Mr. Chernichenko took the Chair.
10. Ms. MARKS (Women's International League for Peace and Freedom), speaking
also on behalf of Habitat International Coalition, the International Union of
Students, the World Student Christian Federation and the World Young Women's
Christian Association, spoke of the discrimination against lesbians and gay
men in all parts of the world, which ranged from jokes at their expense to
State-sanctioned violence and even killings. Reliable statistics suggested
that that group made up at least 5 to 10 per cent of the population of all
cultures at any one time, their invisibility in many societies being indicative
of discrimination. Many lesbians and gay men had good reason to fear that
their human rights would be violated if their sexual orientation or preference
was known.
11. Lesbians and gay men were consistently subject to arbitrary arrest and
detention on grounds of their sexuality, in violation of article 9 of the
Universal Declaration of Human Rights. In Argentina, where homosexuality was
not a crime, arrests were made on fabricated charges. In China people were
arrested because they were homosexual, but were never subsequently charged.
12. Such acts also violated article 3 of the Universal Declaration, as in
cases where lesbians or gay men were murdered because of their sexual
orientation. On 12 July 1992, the bound and strangled bodies of at least five
gay men, including Dr. Francisco Estrada Valle, a well-known AIDS activist,
had been found in Mexico city. Although the Mexican authorities had not been
implicated in those crimes, they had been accused of not investigating them
fully because they involved gay people. Sometimes, however, government agents
Medellín-based group, Grupo de Ambiente, had documented 328 murders of gays by
death squads between 1986 and 1990. Several human rights organizations,
including Amnesty International, had accused the Colombian armed forces of
responsibility for, or at least complicity in, those death-squad killings.
13. Governments also violated article 13 of the Universal Declaration when
they established discriminatory immigration laws excluding foreigners who were
lesbian or gay, or refusing to recognize lesbian or gay relationships for
purposes of sponsorship of partners who were foreign nationals. The rejection
by the United Kingdom authorities in 1989 of an application for asylum by a
gay man from Cyprus who feared persecution in his own country on the grounds
of his membership of a particular social group, constituted a violation of
article 14 of the Universal Declaration. Her organization could provide
experts with further examples of violations of the human rights of lesbians
and gay men throughout the world.
14. In paragraph 185 of his final report on the realization of economic,
social and cultural rights (E/CN.4/Sub.2/1992/16), the Special Rapporteur,
Mr. Türk, drew attention to the need to "devote increased attention to areas
of discriminatory behaviour generally ignored at the international level, in
particular ... with regard to ... sexual orientation". The credibility of
any organization working for universal rights was called into question when
it failed to stand up for the rights of any one group, however unpopular.
Justifying the exclusion of a group was the first step towards justifying
the exclusion of every group other than the dominant group. She urged
members of the Sub-Commission, observer Governments, intergovernmental and
non-governmental organizations to include in their work the issue of ending
violations of the human rights of lesbians and gay men.
15. Ms. GONZALEZ (Latin American Federation of Associations of Relatives of
Disappeared Detainees) wished to draw the Special Rapporteur's attention to
certain factors which should be taken into consideration in the preparation of
his final report on the right to restitution, compensation and rehabilitation
for victims of gross violations of human rights and fundamental freedoms, and
in the drafting of basic principles and guidelines on that question.
16. As the Special Rapporteur rightly pointed out, it was essential that
any study of that right should address the issue of impunity. While it was
true that impunity made it difficult for the victims or their families to
obtain just and adequate reparation, it also itself constituted a failure to
provide reparation, since, in the absence of a trial of those responsible
for the disappearance, the whereabouts of the missing person could not be
established. An extreme example was the case of the detentions in Colombia,
on 9 September 1977, of Omaira Montoya Henao and Mauricio Trujillo, who had
been detained by the secret F-2 unit of the National Police. Omaira Henao
had not been seen since. According to a statement made subsequently by
Mauricio Trujillo before a military judge, Lieutenant Colonel Jaime Ramírez
Gómez and Captain Alvaro Blanco Noriega had taken part in the operation, and
the former had been present when the two detainees were tortured. When the
case subsequently went for trial, Lieutenant Colonel Gómez and Captain Noriega
were appointed Judge of First Instance and Prosecutor respectively. As was to
be expected, the defendants were subsequently acquitted, and the court of
first instance ordered the case to be filed.
prevented families from learning the truth, thus preventing them from obtaining
restitution. The general principle of law applicable was restitution in kind
or, failing that, equivalent compensation. The right of access to the truth
was thus a reparation and restitution necessary for families of missing
detainees.
18. Of course, access to the truth and punishment of those responsible
did not constitute full restitution. Reparation must also be made for the
moral and material harm caused to the victims, in the form of equivalent
compensation. But that compensation could not, or should not, be a substitute
for restitution in kind. Thus, in Argentina for example, Act 24043 of
January 1992 established, with certain restrictions, the right of certain
victims of gross violations of human rights to compensation. But, in parallel,
Acts 23221 and 23492, and pardons granted by the President of the Republic,
guaranteed impunity for those responsible for those gross violations. In such
cases, compensation was a substitute for, and not a complement to, restitution.
Reparation in such cases was partial, not total.
19. Likewise, in Chile, the Comisión Nacional de Verdad y Reconciliación
had recommended a range of measures including symbolical reparation to victims,
statutory and administrative measures to resolve the legal position of spouses
and legal representation of their children, and economic reparation, including
psychological and medical assistance and aid for the education of victims'
children. Yet Act 19123 of 31 January 1992, which established the Corporación
Nacional de Reparación y Reconciliación, referred only to economic
compensation.
20. Her organization stressed that compensation, as reparation by equivalent
means, could not replace reparation in full. That view was supported by the
Inter-American Court of Human Rights, which had stated that reparation
consisted of reparation in full (restitutio integrum), which included
restoration of the situation that had obtained previously, reparation for the
consequences of the violation and compensation for material and other damage.
21. Normally, the term "rehabilitation" was taken to refer to medical
assistance to victims. Without prejudice to that interpretation, her
organization considered that the concept of rehabilitation should be much
broader in scope. In many cases, the social stigma that attached to the
victims of detention persisted after they had been freed. The reasoning
tended to be: "They must have done something to deserve it". Rehabilitation
must also include moral rehabilitation of the victim in society.
22. Mr. McDONALD (International Human Rights Internship Program), speaking on
behalf of the Minnesota Lawyers Human Rights Committee, stressed the link
between human rights concerns and environmental concerns, a link that had been
addressed in a number of reports submitted to the Sub-Commission at the
present session. His organization welcomed the progress report on the subject
submitted by Mrs. Ksentini (E/CN.4/Sub.2/1992/7 and Add.1) and commended the
emphasis it placed on the right of individuals and communities to environmental
information, and on their right to participate in governmental decisions
affecting the environment. His organization wished to see a more workable
definition of the concept of the right to the environment, and of the content
protect the rights of environmental victims. Efforts should be made to study
the appropriateness of existing human rights mechanisms and institutions as
a means of implementing a right to a healthy environment. Other means of
implementing such a right should also be examined.
23. His organization commended Mrs. Ksentini for her participation in the
United Nations Conference on Environment and Development in Rio de Janeiro
and her discussions with NGOs at the forum on human rights and the environment.
It feared, however, that without continuing participation by the Commission on
Human Rights and the Sub-Commission, human rights concerns might not receive
sufficient attention in future implementation of the principles that had
emerged from the Conference. Representatives of human rights institutions
must participate actively in the establishment of the new Commission on
Sustainable Development. Meanwhile, in her final report, the Special
Rapporteur might consider recommending the appointment of a thematic
rapporteur or working group on human rights and the environment to study
the interrelationships of those two issues. Such a procedure could also pay
particular attention to the related issues of the right to development and
the rights of indigenous peoples.
24. Ms. ACTIS (American Association of Jurists) began by referring to the
question of human rights and the environment. Since 1960, forested areas
in Central America had been reduced from 60 to 30 per cent of the total
territory, and deforestation was proceeeding at an annual rate of 1.5 per cent,
with serious environmental consequences such as shortages of water for
irrigation and domestic consumption. That deforestation was the result, partly
of a process of so-called modernization, and partly of strategies for survival.
Modernization had taken the form of indiscriminate felling of trees for sale
as lumber, opening up agricultural land for stock raising (the so-called
"hamburger connection"), for production of coffee and cotton for export, and
for mining operations.
25. The social consequences had included the displacement of poor peasants
and indigenous peoples who were now engaged in strategies for survival,
cutting down trees for use as fuel or to sell as timber. Their attempts
to resist the plundering of their lands were met with repression and
slaughter. The World Bank and the Inter-American Development Bank financed
those processes of modernization, the result of which was concentration of
ownership into the hands of the few, enrichment of the local elites, including
military chiefs, enormous profits for transnational corporations, and
impoverishment and deteriorating living conditions for large sectors of the
population, in a framework of ever more rapid deterioration of the environment.
26. A similar situation obtained in Africa, where famines, at first sight
attributable to climatic conditions and wars, proved on more careful analysis
to be the result of European colonization, that had devastated enormous tracts
of forests in order to plunder their timber and promote export crops such as
coffee, cocoa and groundnuts. Subsistence crops had been marginalized and
traditional agricultural techniques designed to weather periods of drought had
been abandoned. The situation was the same in Asia, where Nepal, for example,
had the highest rate of deforestation in the world. Various documents
published by the United Nations Research Institute for Social Development
(UNRISD) cast valuable light on those situations.
comparable to those of the developing countries. Since the collapse of
the former regime in Poland, many west European enterprises were exporting
industrial waste to Poland, selling polluting products and relocating problem
industries on Polish territory.
28. Developing societies were not intending to follow the trail blazed by the
developed countries. The destruction of natural resources and deterioration
of the environment could be combated only by creating a society compatible
with its environment, not by ad hoc measures. No policy intended to preserve
the ecosystem or reduce consumption of natural resources could be effective on
a world scale until such time as every human being had achieved an acceptable
standard of living. The 1974 Latin American Model had stressed the need for
participation by all in all social decisions. The concept of development as
the full realization of individual human potential could not flourish in the
absence of democracy, political rights and genuine popular participation.
29. It would be difficult not to agree with the conclusions and
recommendations of the report on the right to freedom of opinion and
expression (E/CN.4/Sub.2/1992/9) but her organization was concerned by their
failure to address the monopolistic concentration of the informational media
which made it possible to manipulate public opinion worldwide not only in
political and economic matters but also in terms of consumption habits and
lifestyles which could destroy national cultures. Article 3, paragraph 3,
of the American Convention on Human Rights touched on that problem which
had been the subject of a number of studies, notably the 1976 work of
Professor Tapio Varis on the influence of transnational corporations on
information. In February 1992 Le Monde Diplomatique had published a collection
of papers on the issue under the title "Medias, mensonges et democratie".
30. Her organization believed that the Sub-Commission should prepare a
study on the predominant role played by the mass media in the expression and
dissemination of ideas in contemporary society and consider the creation of
instruments which would prevent their monopolization and ensure their
democratic control.
31. The issue covered by the report of Mr. Varela Quiros
(E/CN.4/Sub.2/1992/10) was part of a wider problem which would include
discrimination against other categories of sick persons and the question
of limiting the right to privacy of the human person in terms for example
of medical controls connected with work, limits on the power of the judiciary
to order compulsory blood tests in order to establish for example the identity
of the author of a crime or alcohol levels. On the issue of compulsory blood
tests, the legislation in different countries reflected different standards
and could have important consequences. For example, on 13 November 1990, in
a case involving a suit by the putative grandparents of a child believed to
have been the child of a couple who had disappeared during the military
dictatorship, the Supreme Court of Argentina had decided, by seven votes to
two, that a compulsory blood test could not be performed because of the
opposition of the adoptive father and because such a test represented a threat
to the physical integrity of the child. The dissenting judges were of the
opinion that the law gave primacy to the right of the minor to ascertain his
own identity over what was involved in taking a compulsory blood sample. The
mandate of Mr. Varela Quiros should be expanded to cover those aspects.
prepared a report (E/CN.4/Sub.2/1992/NGO/10) which documented circumstances
around the world where human rights violations were occurring due to
environmental degradation caused by the depletion of natural resources,
man-made environmental disasters, and poorly planned development projects.
For example, the Narmada River Valley project of the Indian Government,
supported by the World Bank, was likely to displace over 1 million people,
most of whom would not be adequately compensated, resettled or provided with
a sustainable livelihood. Mismanagement of natural resources, including
oil, minerals, water and forests had led to severe watershed erosion,
desertification, and atmospheric pollution in many areas of the world, with
serious impacts on human life. Oil production in the Ecuadorian Amazon had
wreaked havoc on vast areas of primary tropical rainforest, causing serious
deterioration of the food supplies and health of the indigenous people. Of
special concern was the fact that local people were often excluded and their
concerns ignored in government planning of projects that impacted the
environment.
33. She wished to draw special attention to the issue of environmental
refugees, namely, people who had been forcibly displaced or who had migrated
within and across borders because of development projects, environmental
disasters or desertification and drought. The majority of mankind continued
to rely intimately upon local natural resources for sustenance, shelter,
livelihood and culture. Environmental destruction caused by unsustainable
land use practices forced millions to migrate each year. Her organization
estimated that, by the end of the century, the number of environmental refugees
would exceed 100 million worldwide. Environmental migration was also fuelled
by spiralling population growth most of which occurred in poverty-stricken
areas where land had already been marginalized. The resettlement of those
migrants would place additional burdens on the resources within the areas of
refuge, thereby perpetuating the cycle of natural resource destruction and
migration.
34. The environmental refugee problem had reached crisis proportions and
was likely to deepen further because the victims were not protected by
international law and were ineligible to receive humanitarian assistance under
traditional refugee programmes. Many international agencies were uncertain as
to their authority to address population movements that had been induced by
environmental problems because, traditionally, Governments and international
agencies had treated environmental problems separately from migration problems.
Persons fleeing environmental disasters enjoyed no international status or
assistance.
35. The report of the Special Rapporteur (E/CN.4/Sub.2/1992/7) was an
important step towards developing greater understanding of existing human
rights law upon which international institutions could base efforts to address
the suffering of environmental refugees. Her organization therefore urged the
Special Rapporteur to address those issues specifically in her report to the
Sub-Commission the following year. She should be provided with the necessary
resources for the additional work involved in compiling and reviewing the vast
amount of information available. In her final report she might specify which
United Nations human rights bodies should be responsible for clarifying human
rights doctrine to protect environmental victims and identify possible
standards for their consideration.
should recommend that the Commission on Human Rights should facilitate the
drafting and adoption of an international convention or protocol that would
embody international standards for the prevention of human rights abuses
associated with environmental harm and that such an instrument should specify
procedures for remedying environmental human rights abuses.
37. Mr. FORSTER (Minority Rights Group) considered that the state of the
environment and the human rights of small and vulnerable minorities were
closely related. The International Year for the World's Indigenous People
in 1993 would provide an extra focus for concern on the issue.
38. Minority Rights Group proposed to comment on the situations of three
specific indigenous peoples; each of those peoples had a different culture,
environment and way of life but the common thread was that each continued to
be threatened by environmental catastrophe.
39. The testing, storing and disposal of long-range missiles and weapons of
mass destruction had made the Pacific one of the most militarized areas of
the world. Minority Rights Group had welcomed the announcement by the French
Government of a moratorium on nuclear testing in the Pacific and urged the
French Government to make the moratorium permanent. It also welcomed the
decision by the United States Government not to proceed with the destruction
of toxic wastes and chemical weapons incineration at Johnson Atoll. Despite
positive moves by Governments there was still grave cause for concern in the
Pacific. The costs of past nuclear testing - whether by the United States,
the United Kingdom or France - were still being paid by the Pacific Islanders
of Micronesia and French Polynesia in terms of health, habitat and lifestyle.
40. The Adivasis were the tribal peoples who lived in the forests and
plains of Bangladesh. Over the past 30 years, over half of the vast
Madhupur Forest had been destroyed and the Mandi Adivasis evicted by settlers,
despite the fact that the Mandi had been resident in the forest for several
hundred years. The greatest single threat to tribal land holdings was the
continuing establishment of rubber plantations from 1986 to the present.
Some international donors had provided funding for those activities without
proper regard for the situation of the Adivasis. The Adivasis were Bangladeshi
citizens and suffered no disability under law but the previous military
Government and certain major banks had failed to protect their environment and
livelihood. Minority Rights Group hoped that a democratic Government would
address those problems and ensure that projects in the future would not be
carried out without the full and informed consent of the Adivasis and others
concerned.
41. The "small peoples of the North", the 26 indigenous groups which inhabited
the vast region from the Finnish border to the eastern seaboard of the Russian
Federation were also struggling to survive in an environment which had been
contaminated by industrial development, including factories, mines, oil and
gas extraction and logging. Land and rivers had been poisoned and polluted,
traditional native livelihoods built around hunting and fishing had been
destroyed. Totalitarian communism had resulted in the resettlement of whole
communities from their traditional lands to inappropriate sites. The boarding
parents and communities had meant that many of the traditional survival
skills, essential in the harsh environment of the north, were being lost.
The new non-Communist Government of the Russian Federation had recognized
some of the damage done by past policies and had indicated that attempts
would be made to rectify mistakes and possibly reverse certain policies.
42. The Governments of France, Bangladesh and Russia had all taken positive
steps which could improve the situation of Pacific Islanders, Adivasis and the
small peoples of the north. Those first steps must be turned into coherent
long-term programmes to preserve, protect and restore the environment, if human
rights were to be protected. Legal rights and sanctions must be backed by
State support. The issues of full information on past abuses and compensation
for life, resources and lost livelihoods must be addressed. All of those
Governments would aid their credibility by allowing free and unfettered
access to those areas by non-governmental organizations and by entering into
constructive dialogue with the peoples concerned and with NGOs. Above all,
they must listen carefully to the voices of the indigenous peoples themselves
with a view to ensuring the full enjoyment of their human rights.
43. Ms. MENICI (International League for the Rights and the Liberation of
Peoples) welcomed the inclusion of the issue of impunity in Mr. van Boven's
study concerning the right to restitution, compensation and rehabilitation
for victims of gross violations of human rights and fundamental freedoms
(E/CN.4/Sub.2/1992/8). Impunity had been widely recognized to be among the
major obstacles to the effective implementation of that right.
44. Many legal and extralegal devices had been employed to prevent victims
from having access to the courts or from obtaining needed proof. The Special
Rapporteur might consider giving further consideration to such devices and
propose appropriate rules or principles.
45. Her organization believed that the right to reparation for victims of
gross violations of human rights in no way exonerated the State from its
obligation to investigate the facts and bring to justice and punish persons
found to be responsible. Those elements should be part of the reparation.
46. In a number of countries grave violations of human rights were frequently
accompanied by stigmatization of the victim, as in the case of Graciela Daleo
in Argentina who, after many years as a disappeared detainee, was accused of a
crime which she had not committed. When human rights were violated in such a
way that society itself was harmed, reparation for such crimes should go
beyond the purely personal aspect. The Colombian Section of the International
League for the Rights and the Liberation of Peoples had submitted a proposal
to the Colombian authorities for the suppression of impunity, pointing out
that in cases involving gross violations of human rights such as political
assassination, forced disappearances and torture, reparation must include the
public stigmatization of the State crime in order to make the public aware
that human rights could be exercised without the risk of victimization and to
re-establish confidence in justice.
social and political climate where impunity prevailed, the right to reparation
for victims of gross violations of human rights and fundamental freedoms was
likely to become illusory.
48. Ms. SCHREIBER (International Abolitionist Federation) said that the
principle of the right to compensation and indemnification for damages caused
by gross violations of human rights was to be found in the majority of
international human rights instruments, some of which also provided for the
establishment of monitoring bodies to ensure the effective implementation of
the provisions of those instruments.
49. The International Covenant on Civil and Political Rights, in article 2,
paragraph 3 (a), provided that each State party undertook to ensure that any
person whose rights or freedoms had been violated should have an effective
remedy, notwithstanding that the violation had been committed by persons acting
in an official capacity; article 2 in paragraph 3 (b) also undertook to ensure
that the competent authorities would enforce such remedies when granted.
Article 8 of the Covenant prohibited slavery and the slave trade in all their
forms.
50. In the latter connection, she recalled the physical and mental suffering
of Korean girls forced into prostitution by the military authorities of Japan
during the Second World War, of those in current organized prostitution in
military bases and in the traffic in thousands of women and children for
purposes of prostitution and pornography. In that connection she also wished
to refer to the recommendation of the Working Group on Contemporary Forms of
Slavery which had formally declared that slavery in all its forms represented
a crime against humanity and should be punished as such. The Working Group
had included in its agenda for 1993 a study of measures for the rehabilitation
and protection of such victims including the possibility of a United Nations
voluntary fund which would provide humanitarian, legal and financial
assistance to persons whose rights had been gravely violated. In addition,
the International Law Commission was preparing a code of crimes against peace
and humanity; such crimes should categorize slavery and forced labour as a
crime against humanity.
51. The issue of compensation for human rights violations was complex
because: the machinery and procedures for the purpose had not yet been
established; as the Special Rapporteur had pointed out, very little attention
was paid to the question of compensation for victims because the issue was
frequently regarded as a nuisance or unimportant, while the view of the
victim was often overlooked; and because of the question of impunity. In the
latter connection, Mr. van Boven had pointed out that the obvious link between
impunity and the fact that victims were not ensured fair and equitable
compensation must not be overlooked.
52. On the issue of impunity, the question arose as to whether the approach
should be declaratory, one of standard setting or the establishment of an
international criminal jurisdiction established for the purpose. In the latter
connection, some members of the International Law Commission had expressed the
opinion that such a court would represent a further step forward in the
development of international law and a code of crimes against humanity. She
findings of the Maastricht Conference on the Right to Restitution, Compensation
and Rehabilitation for Victims of Gross Violations of Human Rights and
Fundamental Freedoms, held in March 1992. The way might then be open as a
first step towards the establishment of an international commission on the
right to restitution and compensation for the victims of gross violations.
53. Ms. PARKER (Sierra Club Legal Defense Fund) said that, since its
foundation in 1971, her organization had provided the highest quality legal
representation, without charge, to groups seeking to protect global, regional,
national and local resources.
54. All countries were currently confronted with at least some problems
involving human rights and the environment. In the United States, the issues
had become so important to society as a whole that environmental policy had
become a major feature of current national political campaigns. In developing
countries the issues of the environment and human rights might well overshadow
all other human rights concerns as they encompassed the right to housing;
poverty and human rights; the right to development; environmental refugees;
and life and health concerns.
55. The Legal Defense Fund had always stressed the importance of the broadest
possible involvement in defining and implementing environmental policy. The
experience of countries that had developed or were seeking to develop sound
environmental policies could be useful to the Special Rapporteur on human
rights and the environment and her organization would encourage countries to
provide her with information regarding both process and implementation.
Popular participation had been heavily emphasized in the Rio Declaration,
especially in Principle 10 requiring States to provide access to and
participation in decision-making processes, in Principle 20 emphasizing the
essential participation of women, and in Principle 22 stressing the role of
indigenous peoples and their communities.
56. Principle 10 had also mandated appropriate access to information and was
strongly endorsed by her organization. Affirmative evaluation and disclosure
included the preparation and dissemination of environmental and human impact
studies prior to, during and after large-scale projects. Even small projects
might require affirmative disclosure of information such as when housing was
contemplated on former dumping sites of hazardous materials. Her organization
also welcomed the mandating in Principle 10 of effective access to judicial
and administrative proceedings, including redress and remedy. On the issue
of effective redress in the context of human rights and the environment, her
organization had noted that the International Court of Justice, in its
decision on Military and Paramilitary Activities In and Against Nicaragua
of 27 June 1986, had ordered reparations for material damage to property
arising from acts of violated international law.
57. The Sierra Club Legal Defense Fund had stressed the necessity for
anticipatory remedies such as injunctions and restraining orders in order to
promote and protect environmental human rights in certain circumstances and
noted that Mrs. Ksentini, Mr. Al-Khasawneh and others had also raised that
issue. Such remedies were available in many other contexts. The Sierra Club
Legal Defense Fund had noted the practice of the Special Rapporteur on summary
Anticipatory remedies had also been invoked by the Human Rights Committee and
by the Committee on Economic, Social and Cultural Rights. Further elaboration
of that topic by the Special Rapporteur on compensation would be useful.
58. The Sierra Club Legal Defense Fund had noted the increasing attention in
regional forums paid to human rights concerns about the environment, in
particular the transboundary effect of certain environmental problems.
Regional approaches were essential because it was increasingly difficult to
address environmental problems in isolation. Africa, North and Latin America,
Europe and regions of Africa and Western Asia had all begun to address such
issues regionally. There was little information, however, about regional
approaches in South and East Asia and the Pacific Basin.
59. Her organization welcomed the attention paid by the Special Rapporteur
on human rights and the environment to concerns presented to her by persons
and groups from all over the world including meetings sponsored by the Sierra
Club Legal Defense Fund. The Fund looked forward to further work with the
Special Rapporteur.
60. Ms. NOLAND (International Association of Educators for World Peace) said
that she spoke as a woman who was deaf. Unique to her deafness was that she
could articulate for herself. Many deaf people were also speech impaired.
Often, because they could articulate or speak, it was assumed that they could
"hear a little" or read lips better than they really could and therefore did
not need a sign-language interpreter. That was not true, and she routinely
used a sign-language interpreter so that she could fully communicate, but had
not been able to afford to bring one with her. It was to be hoped that one
day, sign-language interpreters would be just as available as language
interpreters, allowing people who were deaf to participate fully. She sought
the support of the Sub-Commission in making that a reality.
61. Regarding the issue of human rights and HIV-infected people or people
with AIDS, she applauded the work of the World Health Organization (WHO) and
the positive efforts in many countries to begin eliminating discrimination
against those who had AIDS. She supported the recommendations made by the
Special Rapporteur in the report on discrimination against HIV-infected people
or people with AIDS (E/CN.4/Sub.2/1992/10).
62. She welcomed the efforts of the Sub-Commission and of the Commission on
Human Rights to promote awareness for the human rights of disabled people
worldwide. Currently, 500 million people had disabilities, without distinction
of race, ethnic group, sex, religion, age or social origins. HIV and AIDS did
not discriminate either, and there was no question that AIDS was disabling.
63. It had been pointed out that HIV-infected persons were driven
underground, where they did not receive education, counselling or care.
Yet there were millions of disabled people who were already isolated because
of their disabilities and who in too many cases were already deprived of
education, counselling and care. The strategies for preventing AIDS-related
discrimination and for educating and empowering people worldwide to take on
responsibility for their own health must include reaching everyone with that
vital information. Although surely there was general agreement that disabled
persons who could not see the written or hear the spoken word. Many people
who were deaf and infected with the AIDS virus did not have any means of
communicating, assuming they knew where to seek help at all. Moreover,
providers of service did not make interpreters available and did not know
where to find them. There was a lack of materials (Braille, large print,
audio tapes or computer disks) for people who were blind or visually impaired.
Access to the written and spoken word was a human right. That must begin in
the Sub-Commission, which must provide sign-language interpreters and written
materials in alternative formats for persons who were blind.
64. The Sub-Commission must participate in the strategies and programmes to
combat HIV and AIDS. The international community must send a message of
inclusion, not segregation, and the Sub-Commission must address the question
of people with disabilities in connection with every human rights issue before
it.
65. Mr. Alfonso Martínez resumed the Chair.
66. Mr. CROOK (Observer for the United States of America), speaking on the
final report on the right to freedom of opinion and expression
(E/CN.4/Sub.2/1992/9), and in particular on the conclusions and recommendations
contained in document E/CN.4/Sub.2/1992/9/Add.1, said that with all due respect
for the scholarship and dedication of the Special Rapporteurs, he disagreed
with much that was in the addendum.
67. The United States regarded unfettered freedom of expression and freedom
of the press as crucial instruments for attaining and maintaining other
freedoms. The recent experiences of many countries casting off old tyrannies
and struggling to build new, free institutions reconfirmed the power of free
expression and a free press.
68. As was aptly emphasized in the 1990 Declaration of Windhoek, consistent
with article 19 of the Universal Declaration of Human Rights, the
establishment, maintenance and fostering of an independent, pluralistic and
free press was essential to the development and maintenance of democracy in a
nation, and for economic development. The Declaration also stressed that the
worldwide trend towards democracy and freedom of information and expression
was a fundamental contribution to the fulfilment of human aspirations.
69. Those freedoms were given special protection by the First Amendment of
the United States Constitution and by the courts. The United States subscribed
fully to article 19 of the Universal Declaration and was deeply sceptical of
other international texts, including the provisions in the International
Covenant on Civil and Political Rights, which sanctioned potentially extensive
controls on free expression and the press.
70. The danger was that free expression and a free press could so easily be
choked by the State. States wishing to avoid criticism and to stifle dissent
and to protect their power tended to exploit all available means to do so.
Accordingly, his delegation opposed any provisions that would seem to condone
State control over freedom of expression and the press. Such control was
incompatible with the continued exercise of the rights of free expression and
a free press. It detracted from, rather than promoted, general welfare in a
democratic society.
71. Neither the work of the Sub-Commission nor of any other United Nations
body should give sanction or credence for controls on free expression and a
free press. That was a key point on which his delegation seemed to part
company with the authors of the report, who started with the premise that
controls on expression and the press were sometimes justified and then posited
and refined an international framework for determining the extent of allowable
controls.
72. In the view of his delegation, that was not how the problem should be
approached. The Sub-Commission should denounce and combat State controls on
expression and the press, not provide the blueprint for their enactment.
73. In conclusions 1, 2 and 3, the report seemed to suggest a hierarchy of
rights. It implied that freedom of expression and the press were somehow of a
lesser character, properly subject to derogation or limitation. His delegation
did not agree. Freedom of expression and of the press were fundamental to
the creation and functioning of a healthy society. They could not be less
protected than other rights, for without them, no other rights could be
assured.
74. Some of the situations cited in the conclusions showed the hazards that
arose when Governments were allowed to open the door to controls on expression
and the press. The conclusions spoke of the criminal conviction and even
persecution of journalists. But that could only occur where Governments were
allowed to sanction people for what they wrote or said.
75. The conclusions also referred to new laws enacted to curb xenophobia and
racism, and new criminal sanctions on the dissemination of unpopular and ugly
ideas. But, as it also rightly warned, there was a grave risk that such cures
might be far worse than the evil they aimed to cure. The history of the
United States and of many other countries had many examples of wrongs and
excesses inflicted when the State had sought to legislate away unpopular
expression of opinions. The Conclusions in addendum 1 urged that restrictions
be interpreted and applied restrictively. But that only lent support to the
existence of controls in the first place.
76. For those reasons, his delegation did not believe that the Sub-Commission
should undertake further work to develop standards for the so-called
"admissible" restrictions or a system of "restrictions on restrictions".
Any such system was too prone to abuse. Indeed, contacts with concerned
journalists about that report suggested that many responsible organizations
would be reluctant to enter into any such activity. Instead of focusing on
restrictions that might be imposed, the Sub-Commission should focus on positive
statements of the rights it supported. In that regard, the Charter for a Free
Press developed by a number of journalistic groups set out useful guidelines
for the realization of freedom of the press. Realization of rights, rather
than their limitations, should be the Sub-Commission's goal.
warranted further reflection: the creation of a special rapporteur or working
group aimed at providing safeguards for professionals in the field of
information. That idea might be too narrow in scope, but it contained
interesting possibilities for a broader mechanism for protecting all persons
persecuted or punished because of the exercise of the rights enumerated in
article 19 of the Universal Declaration. Such a mechanism would be a worthy
addition to existing United Nations mechanisms and would enjoy his
delegation's support.
78. Mr. AIZAWA (Observer for Japan) said that he wished to reply to
statements by the World Council of Churches and Liberation, which had referred
to the so-called "comfort women" during the Second World War. Japan's view
was the same as stated in its reply under item 16. The question of claims for
retained wages, savings or deposits of Korean workers to which the World
Council of Churches and Liberation had referred had been completely and
definitely resolved by the agreement on the settlement of problems concerning
property and claims and on economic cooperation between Japan and the Republic
of Korea, signed on 27 June 1965.
79. Mr. ERKMENOGLU (Observer for Turkey), referring to the paper distributed
by the non-governmental organization Article 19: The International Centre
against Censorship, said that, like that NGO, Turkey regretted the killing of
so-called journalists or others by terrorist groups.
80. Nevertheless, to put the record straight, it must be said that most of
those killed had not been real journalists but militants engaged in activities
in defence of terrorist violence. Needless to say, that did not justify
murder. Turkey was therefore doing its utmost to bring those responsible to
justice.
81. But violence bred violence, and one terrorist group gave birth to another.
The casualties due to terrorism had risen to 4,000 in eight years, more than
half of them civilians. The nature of terrorism made it difficult and timeconsuming
to investigate each case and find those responsible.
82. As for freedom of opinion and expression in Turkey, if the NGO in question
had read the Turkish newspapers and weeklies it had mentioned it would have
realized that they all enjoyed freedom to such an extent as to be able to
defend terrorist violence in a democratic country. He challenged the NGO to
cite an example in which freedom of expression was as unlimited.
83. His delegation believed that NGOs could employ themselves more usefully
than by supporting terrorism, and the NGO in question would also do well to
read articles 19 and 30 of the Universal Declaration of Human Rights.
84. With regard to indemnity for inquiry to personal dignity, the amounts
charged by the courts were much lower in Turkey than most Western countries.
85. The CHAIRMAN said that the Sub-Commission had concluded its debate on
agenda item 4.
(E/CN.4/Sub.2/1992/3 and Add.1; E/CN.4/Sub.2/1991/16; E/CN.4/1992/46)
86. Mr. HATANO (Japan), speaking as a member of the Working Group on the
methods of work of the Sub-Commission, referred to the application of the new
guidelines and the Sub-Commission's continuing efforts to improve them.
87. Concerning the opening time of meetings, the new guidelines in draft
resolution E/CN.4/Sub.2/1992/L.15 contained a number of provisions that simply
codified the "established practice" of the Sub-Commission. Yet some of those
practices would not appear to be so "established" after all. For example,
Guideline No. 13 had stated that in accordance with established practice,
meetings were to be begin at the scheduled time. Clearly, that was not the
"established" practice. None of the meetings over the past three weeks had
began at the scheduled time. Furthermore, it might be common knowledge among
the older members of the Sub-Commission, but the newer members certainly were
not aware of any such "established practice". He himself usually came to the
conference room before 10 a.m., but he had never thought of asking the
Chairman to open a meeting on time, since he had assumed that the Chairman
could not do so without a quorum, and he was certain that that had also been
the understanding of other newer members of the Sub-Commission. But, in fact,
according to the established practice embodied in Guideline No. 13, meetings
had to be opened at the scheduled time. In other words, the Chairman was
obliged to start the meetings on schedule.
88. He was aware that the Chairman might be personally occupied with urgent
issues beyond his control, but the Sub-Commission had also elected three
Vice-Chairmen for the purpose of replacing the Chairman, and it was highly
inconceivable that none of them was available to open a meeting at the
scheduled time. In view of the above, he suggested that the Sub-Commission
should establish the practice of opening its meetings strictly at the
scheduled time, beginning with the next session.
89. Turning to Guideline No. 16 on speaking time, it had been a practice,
whether established or not, that the Chairman did not start exercising his
prerogatives with regard to the speaking time and that the self-discipline on
the part of the members did not begin functioning until a rather late stage,
and it had therefore often happened that towards the end of the session, even
members were allowed to speak for no more than seven or eight minutes. Those
agenda items upon which he wished to speak were usually scheduled for the
second half of the session, and in order to make full use of the time-limit
for members, he had therefore made it a rule to refrain from asking for the
floor at an early stage, taking into account the fair and reasonable allocation
of time as a whole to each member of the Sub-Commission. Nevertheless, the
strict observance of the time-limit of seven or eight minutes was applied to
all members, regardless of whether they had already spoken a lot or not. That
seemed to be a little unfair and unreasonable. He therefore strongly appealed
to the Sub-Commission to instruct the Chairman for the next session strictly
to observe the speaking time from the very outset of the session, even if it
meant interrupting statements.
respected the speaking time throughout the session, there would be little need
for extended sessions. The Sub-Commission should, of course, be ready to have
an extended or night session in case of an emergency, but when extra meetings
could be avoided by the self-discipline of its members and by the strict
imposition of the time-limit by the Chairman, the Sub-Commission should
refrain from requesting such meetings, which were usually inconvenient and
tiring to all participants, including United Nations staff members. It was
paradoxical that, by holding such extra meetings, a human rights body like the
Sub-Commission might well be violating the fundamental human rights of those
involved in its work.
91. Turning to the question of the Sub-Commission's continued efforts to
improve the guidelines by amending the existing rules of procedure, he did
not intend to reopen the debate on the text, upon which agreement had
already been reached. As clearly stated in the report, the Working Group had
been authorized by Commission on Human Rights resolution 1992/66 to make
recommendations, but only without calling into question the rules of procedure
of the functional commissions of the Economic and Social Council. Admittedly,
the amendments to those rules of procedure fell exclusively within the
jurisdiction of ECOSOC, but that did not necessarily mean that the functional
commissions and their subordinate organs were categorically forbidden even to
propose any amendments to ECOSOC. That was particularly so in the case of the
Sub-Commission, which was composed not of representatives of Governments, but
of independent experts, since there were some rules which were not literally
applicable, as they stood, to the Sub-Commission or which were insufficient in
clarifying the Sub-Commission's established practice. As an example, he cited
rule 15, which read as follows: "At the commencement of its first meeting of
a regular session the commission shall elect, from among the representatives
of its members, a Chairman, one or more Vice-Chairmen and such other officers
as may be required". It was in accordance with that rule that the current
Chairman and other officers had been elected. But rule 15 was neither
applicable in stricto senso to the Sub-Commission, nor was it sufficient
for it in various points. The word "commission" should be replaced by
"Sub-Commission"; the words "the representatives of" must be deleted; in order
to specify the Sub-Commission's established practice, the term "one or more
Vice-Chairmen" should be amended to read "three Vice-Chairmen" or perhaps
"three Vice-Chairpersons"; for the same reason, the words "and such other
officers as may be required" should be replaced by "a Rapporteur". Those were
all points which were not literally applicable as such to the Sub-Commission.
Furthermore, the current rules of procedure of the functional commissions
lacked a number of precise provisions that were indispensable to the newer
members. For example, it should be stated how the Chairman was elected,
whether in rotation from each of the five regional groups and in what order.
If he was not mistaken, starting with 1992 the order was Latin America, Asia,
Africa, Eastern Europe and Western Europe. It was his understanding that with
the appointing of rapporteurs, rotation was not in the same order, but rather,
starting again with 1992: Western Europe, Eastern Europe, Asia, Latin America
and Africa. Apparently, those "orders" had been known only to the older
members of the Sub-Commission and the older staff of the Centre for Human
Rights, because to his knowledge, such information had not been available in
written form, unless the recent annual reports of the Sub-Commission were
undesirable, and accordingly, such information must be clarified in guidelines
accessible to all.
92. Furthermore, some precedents did not deserve the name of "an established
practice", for example the question of whether the name of a member that a
regional group had agreed to nominate as Chairman for the following session
should be publicly announced at the end of a given session and what steps
should be taken when a regional group failed to reach unanimous agreement when
nominating a Chairman. In order to avoid confusion and unnecessary delay,
such points should also be clearly set out in the Sub-Commission's guidelines.
93. In addition, the Sub-Commission might perhaps reconsider the
present geographical distribution having five groups, since the East-West
bipolarization had come to an end. He was fully aware that the existing
distribution reflected that of the Security Council but the Sub-Commission had
a good opportunity of showing its independence and uniqueness by merging the
eastern and western European groups into a single group and by allotting it a
new number of members.
94. Those were some, but not all, of the reasons why he insisted on
continuing the effort to supplement the guidelines by amending the existing
rules of procedure, subject, of course, to the approval of the
Sub-Commission's parent bodies.
95. Turning to the text reproduced in document E/CN.4/Sub.2/1992/L.15, he
drew attention to the need to maintain uniformity in the order of words.
He suggested that the words "decisions or resolutions" in Guidelines Nos. 8
and 13 be changed to "resolutions or decisions", and that the words "a
consensus and solemn declaration" in Guideline No. 11 be re-ordered to read
"a solemn and consensus declaration". Guidelines Nos. 9-12 referred only to
"resolutions" while Guideline No. 8 mentioned both "resolutions and decisions";
therefore the words "and decisions" should be added after the word
"resolutions" in Guidelines Nos. 9-12.
96. Since Guidelines Nos. 8-12 had no titles, he suggested that the following
headings should be used: for Guideline No. 8, "Number of resolutions and
decisions"; for Guideline No. 9, "Self-discipline regarding the number of
resolutions and decisions"; for Guideline No. 10, "Co-sponsors of resolutions
and decisions"; for Guideline No. 11 "Consultations by the Chairman"; and for
Guideline No. 12, "Deadline for the submission of draft resolutions and
decisions".
97. Ms. ACTIS (American Association of Jurists), speaking on behalf of
her own organization (AAJ), the International League for the Rights and
Liberation of Peoples, Service Peace and Justice in Latin America, Centre
Europe-Tiers Monde and the Latin American Federation of Associations of
Relatives of Disappeared Detainees, said that it was necessary to restructure
the agenda and the suggestions made in document E/CN.4/Sub.2/1992/3 were
appropriate for that purpose. Nevertheless, there were certain imbalances in
the items, partial approaches and some important omissions.
youth and women (including traditional practices) was not receiving the
attention it deserved, since women and children constituted the majority of
the human race and faced enormous problems. That topic should be made a
separate item. The isolated reference to "traditional practices" was not
justified. Traditional practices were important, but no more so than
discrimination against women in matters of wages, working hours, promotion,
and social and family oppression. Sub-item 9 of item II (Discrimination
against HIV-infected people or people with AIDS) formed part of a much larger
problem which should include discrimination against persons suffering from
other diseases as well.
99. The items on the right to a fair trial and the independence and
impartiality of the judiciary, jurors and assessors and the independence of
lawyers should be merged and given all their due importance. Sub-item 3 of
item IV would appear to indicate that the right to freedom of opinion and
expression were specific rights of certain professional categories such as
journalists and United Nations officials, whereas in reality they were
fundamental rights of all human beings. That would have to be corrected.
Finally, there were two important omissions - representative democracy and
popular participation. Those topics ought to be under permanent study by the
Sub-Commission. Representative democracy was continually suffering from the
trend to concentrate power for the sake of alleged administrative efficiency,
and popular participation was an ideal that was far from being attained.
100. The strengthening of the independence of the Sub-Commission's experts had
hardly been touched upon in the Working Group's report. The section devoted
to it was largely concerned with the privileges and immunities of the experts
and their safety; it was only distantly related to their independence. That
independence had been mentioned in several resolutions, and Karel Vasak, in
his book on the international dimensions of human rights, when referring to
the members of the ILO Committee of Experts on the Application of Conventions
and Recommendations, had stressed that independence was the key to success
and that experts should not hold a national post binding them closely to
the administration of the State. Unfortunately, the Working Group had not
endorsed that view in its report. AAJ therefore reiterated in the
Sub-Commission the suggestion which it had made to the Commission in document
E/CN.4/1991/NGO/18 - namely, that a resolution should be adopted establishing
an incompatibility between being an expert member of the Sub-Commission and
holding government office, including office in the diplomatic service. No
incompatibility would exist as far as judges, members of parliament, teachers
or research workers were concerned.
101. The non-governmental organizations on whose behalf she was speaking
had been greatly impressed by the sensitivity and speed displayed by the
Sub-Commission and the Commission on Human Rights in reacting to the dramatic
situation in Yugoslavia. They hoped that such rapid reactions in defence of
human rights would not be selective and that they would continue to be made in
relation to other equally serious situations in other parts of the world, such
as Afghanistan, Somalia, East Timor and Kurdistan. Speed, however, did not
mean precipitation. For example, the text on the situation in Yugoslavia
had required several hours of serene reflection. It was to be hoped that
convening of the special session of the Commission without waiting for the
run-up to an election in their respective countries.
102. The special session of the Commission and the implementation of its
decisions had had substantial financial implications. It was to be hoped that
the Government of the United States of America, which had taken the initiative
in the matter, would help to solve the serious financial problems currently
afflicting the United Nations by paying off its debt to the Organization,
which on 30 April 1992 had amounted to US$ 555 million.
103. Mr. ACTAN (Observer for Turkey) referred to operative paragraph 10 of
Commission on Human Rights resolution 1992/66, which invited the Sub-Commission
to continue to give due regard to new developments in the field of human
rights. He was aware that the members of the Sub-Commission had always given
weight to new developments, but the very magnitude of those developments
warranted a review of the general approach to human rights.
104. The United Nations human rights system had taken shape in the aftermath
of the Second World War and had developed in the ensuing cold war conditions.
It therefore reflected the imprint of a global compromise between the two
poles of the international system. As a result, democracy, democratization,
democratic rights and freedoms and democratic institutions had not found
enough expression in international standards and instruments. An impression
had been created that human rights and freedoms could be promoted and
protected outside the democratic framework.
105. Western countries had taken care of their own concerns for human rights
within the Council of Europe. Upon the collapse of the Soviet empire, the
former Communist countries of Eurasia had developed an elaborate democratic
framework within the Conference on Security and Cooperation in Europe (CSCE),
in cooperation with their Western partners. Thus, for those two groups of
countries, the importance of the United Nations human rights system had greatly
declined. What was left to it in practice was monitoring mainly the human
rights situations in developing countries.
106. Most of the activities of the United Nations human rights system were
related to alleged violations committed by security forces and the failure of
the judiciary to meet international standards in developing countries in their
struggle against terrorist violence.
107. Nevertheless, unlike what happened in the CSCE, terrorism was not treated
by the United Nations as a human rights violation but as an impediment to the
enjoyment of human rights and freedoms. The absence of terrorist violence
from the agenda resulted in the dissection of the organic unity of a social
phenomenon that was not conducive to an understanding of the problem or to
finding a solution to it. Under those circumstances, terrorist violence and
alleged human rights violations continuously spiralled despite severe
international criticism of the latter in human rights circles.
108. The impasse arose also from the fact that democracy was not embodied in
international standards in the United Nations system, but countries without
democratic regimes seemed to be considered as tyrannical and oppressive and
the use of violence against them was justified as a last resort.
their concerns to violations committed by Governments while neglecting
terrorist violence. States, however, for their survival were primarily
interested in terrorist violence, whose continuation could bring about the
collapse of the political order and a return to a "state of nature" where
savage violence spared no one. The view of the NGOs that respect by States
for human rights together with the rule of law in their struggle against
terrorist violence was the only remedy was morally correct but grossly
inadequate from the sociological point of view.
110. Since the main focus in the United Nations system was on developing
countries, it would be helpful to ascertain what the development process was.
Development triggered off a massive population drift from rural to urban areas
and entailed the politicization of society. It destroyed customs, traditions
and beliefs. Class and regional imbalances reached great proportions.
Development was an extremely unstable, even destabilizing, process in which
large segments of the population suffered from unemployment, culture shock,
maladaptation, and socio-economic deprivation amid rising expectations.
In that process State coercion became almost inevitable to keep economic
expectations from outgrowing economic capacity and becoming violently
ideological and to prevent discontent from sliding into fanaticism and
fundamentalism or regional imbalances from turning into ethnic separatist
aspirations.
111. In a developing country an authoritarian Government might have the
consent of the people for some time, provided that a high rate of development
benefiting the masses was achieved. In the medium term, however, no
authoritarian Government could retain the backing of the people because of the
rapid corrosive effects of the structural problems involved. That was where
democracy came into the picture. Without democracy, neither could rapid
change take place peacefully nor could there be changes of government without
violence. A comprehensive development strategy should therefore embody the
democratization process. He had no illusions about democracy, being fully
aware that it was very difficult to establish, that it had many imperfections,
that it did not automatically guarantee human rights and freedoms, especially
ethnic ones, that it rendered economic management more difficult, and that it
allowed centrifugal forces to make society more vulnerable to external
pressures and interventions.
112. Consequently, a new approach should be elaborated, comprising the
following points, in the United Nations human rights system with a view to
helping countries to establish democracy.
113. First, the present approach seemed to aim at promoting democracy
primarily through securing respect for individual human rights. That was
mainly inspired by the historical experience of the Western countries.
For countries which for various reasons had remained outside that Western
development, the process should be reversed and priority should be given to
the establishment of democratic institutions. Second, democratization was a
long process and countries should be expected to engage in it and advance
gradually, in a phased approach. Third, democratizing countries should be
entitled to the moral, material and technical help of the international
community. Fourth, terrorist violence should not only be condemned verbally.
justified for the acquisition of ethnic or ideological rights. That required
a radical revision of NGO policies which condoned terrorism in general and
ethnic violence in particular. NGOs should realise that political order was
the essential prerequisite for democracy and for respect for human rights and
that terrorist violence endangered the very basis of the political order and
impaired efforts to move towards democracy. Fifth, the democratization of
developing countries also required a profound revision of the foreign policies
of industrialized countries. In the cold war both camps had encouraged ethnic
groups for destabilization purposes. As a result, ethnic aspirations had
swollen to such an extent that neither authoritarian nor democratic
Governments could cope.
114. Democratization would make developing countries more vulnerable to covert
and overt external interventions. Stronger countries should therefore refrain
from manipulating the situation. After all, respect for human rights and
freedoms could never be fully achieved if other countries pursued predatory
foreign policy aims. In other words, the entire international relations
framework should become normative. A partially normative approach did not
stand any chance of success. It was hard to blame the Government of a country
for committing violations while terrorist violence in its territory was being
instigated, organized and supported by its neighbours and others.
115. Turkey was preparing to accede to the International Covenant on Civil and
Political Rights, and as soon as it became a party it would propose a series
of amendments with a view to incorporating democracy, democratic institutions,
rights and freedoms in the Covenant as a protocol. He suggested that in
the restructured agenda the Sub-Commission should include "Democracy and
democratization" as a new sub-item 4 under item IV and "The elimination of
terrorism", again under item IV, after "Preservation of international peace
and security ...".
116. Mr. EIDE, commenting on the previous speaker's remarks, said that
"terrorist violence" must be taken to mean the systematic use of acts of
terror by Governments as well as by terrorists; in other words, the existence
of terrorism could not be invoked to justify acts of terror by Governments.
In any case, the previous statement should really have been made in the
Commission on Human Rights rather than in the Sub-Commission.
117. Turning to the report of the Working Group (E/CN.4/Sub.2/1992/3), he said
that many members of the Sub-Commission felt that they did not have enough
time in which to do their work. Too many statements were made, some of them
unnecessary. As far as speaking time was concerned, it would be necessary to
ascertain in advance how many hours were available and to divide them up
accordingly. Either some way must be found to limit the number of
interventions made by non-members or more closed meetings must be held. The
number of NGOs and government observers wishing to speak had escalated in
recent years. One way to save time would be for those wishing to comment on
progress reports to convey their views to the Special Rapporteur concerned,
making their statements in public only when the final report was discussed.
In any case, since there was no possibility of increasing the length of the
session, ways must absolutely be found to reduce the amount of time spent on
matters not strictly related to the Sub-Commission's work as a body of experts.
E/CN.4/Sub.2/1992/SR.31
page 25
118. Mrs. WARZAZI endorsed Mr. Eide's comments. The Sub-Commission had changed
considerably over the past 10 years. The increasingly large number of NGOs
and government observers present was in some ways a sign of success, reflecting
the interest taken in the Sub-Commission's work. Unfortunately, however, the
essence of the Sub-Commission's role might be misunderstood. It now seemed
more like a new Commission on Human Rights. When, 10 years previously, it had
met in a much smaller room with just a few NGOs and government observers
present, it had been able to make a proper study of the reports before it.
119. It would be wrong to limit members' speaking time too much. If NGOs
continued to report violation of human rights at almost every juncture, the
Sub-Commission would not be able to do its work satisfactorily. Therefore
NGOs should exercise self-discipline in their statements and government
observers when making statements equivalent to a right of reply, as well as
members of the Sub-Commission themselves.
120. Mrs. PALLEY, speaking on a point of order, moved that, in order to enable
the representatives of NGOs to make their statements on other agenda items at
an early stage, the Sub-Commission should suspend further consideration of
item 3 until either 11 p.m. or 10 a.m. on the following day.
121. After a brief procedural discussion in which Mr. GUISSE, Mr. BOSSUYT,
Mrs. WARZAZI and the CHAIRMAN took part, the CHAIRMAN said that, if there was
no objection, he would take it that the Sub-Commission wished to postpone
further consideration of agenda item 3 until 11 p.m.
122. It was so decided.
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