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10/16/2019 | Press release | Distributed by Public on 10/16/2019 16:38

Vital to Ensure Judicial Independence, Uphold Civil Liberties While Countering Terrorism, Third Committee Experts Say as Delegates Decry Use of Coercive Acts

Ensuring the protection of human rights in counter‑terrorism instruments, tackling contemporary threats to judicial independence, and the role of multinational forums in fostering a more equitable world order were among the topics addressed in briefings to the Third Committee (Social, Humanitarian and Cultural) today, as delegates engaged with experts in lively interactive dialogues.

Fionnuala Ní Aoláin, Special Rapporteur on the protection of human rights while countering terrorism, said civil society members and rights defenders continued to bear the brunt of the 'misuse' of counter‑terrorism laws and practices. Sixty‑six per cent of all communications sent to her between 2005 and 2018 involved measures taken against civil society or rights defenders in the name of fighting or preventing terrorism. States must offer victims of terrorism more than platitudes; they need to deliver 'rights in practice'.

Underscoring the lack of consistent and institutionalized support for human rights protection, she pointed out that she had to draw from research funds to defray the costs of 'a demanding year' of visits to numerous countries for conferences and assessments, which addressed such pressing concerns as use of the death penalty in connection with terrorism crimes involving foreign fighters.

She went on to express concern about the proliferation of 'soft law' instruments in the counter‑terrorism field since the events of 9/11, adding that their hardening and binding in practice is leading to the 'profound' marginalization of human rights. 'More law doesn't always mean better law, particularly in counter‑terrorism,' she emphasized.

Meanwhile, Diego Garcia-Sayan, Special Rapporteur on the independence of judges and lawyers, stressed the need to update the Basic Principles on the Independence of the Judiciary, in order to address contemporary threats such as organized crime and transnational corruption. 'The United Nations should be given a clear mandate to revise the content of the Basic Principles, and thereby improve standards for protecting judges and lawyers from State and non‑State actors and organized crime groups,' he said.

Turning to the right to development, Saad Alfarargi, Special Rapporteur on the subject, highlighted the uptick in the number of disasters every year since the 1980s. This worldwide trend is likely to continue due to climate change, urbanization and concentrations of people living in coastal areas and flood plains. Nonetheless, only 65 countries have established national platforms for disaster risk reduction, he pointed out.

In the course of discussions, several delegates assailed the destructive impact of unilateral coercive measures against their countries, which impinged on their citizens' right to development.

Also presenting their reports were Livingstone Sewanyana, Independent Expert on the promotion of a democratic and equitable international order, and Zamir Akram, Chair‑Rapporteur of the Working Group on the Right to Development. Idriss Jazairy, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, was scheduled to speak, but was unable to address the gathering due to ill health.

The Third Committee will reconvene at 10 a.m. on 17 October to continue its consideration of the promotion and protection of human rights.

Background

The Third Committee (Social, Humanitarian and Cultural) continued its debate on the promotion and protection of human rights today (for background, see Press Release GA/SHC/4266).

Interactive Dialogues - Countering Terrorism

FIONNUALA NÍ AOLÁIN, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said civil society space and rights defenders are at the front lines of the misuse of counter‑terrorism laws and practice, while victims of terrorism continue to bear the burden in many societies. She welcomed the establishment of the Group of Friends of Victims of Terrorism led by Afghanistan and Spain. Given the ongoing challenges to her mandate amid limited resources for Special Procedures, she said the lack of consistent support for mainstreaming human rights into the global counter‑terrorism architecture in New York is a major challenge to the protection of human rights globally.

She said the Special Rapporteur's report (document A/74/335) pays particular attention to the proliferation of 'soft law' instruments. While soft law can have a positive and human rights‑affirming capacity, the scale and pace of 'soft law' production in the counter‑terrorism field is quickly expanding. From a human rights perspective, the translation of hard law into soft law is a deep concern, given the profound marginalization of human rights within the counter‑terrorism architecture. The growth of legal norms on terrorism has been on a fast track since the events of 9/11. However, more law does not always mean better law - and more rules do not necessarily mean greater efficiencies. The production of 'soft law' counter‑terrorism instruments by United Nations entities should be benchmarked against human rights treaty obligations, and human rights standards should be applied in counter‑terrorism soft norm‑making. United Nations entities should only endorse non‑United Nations standards in the counter‑terrorism arena when they are consistent with international law, human rights and international humanitarian law. She stressed the importance of civil society participation in preventing terrorism and violent extremism. Expressing deep concern that States, international organizations and practitioners do not have a coherent understanding of how new norms and institutions relate to States' human rights and international law obligations, she said she plans to map the totality of State obligations across counter‑terrorism, human rights and international law norms and identify where legal conflicts exist. 'The proliferation of soft law and new institutions in the counter‑terrorism arena requires attention by all States,' she asserted.

In the ensuing dialogue, the representative of the United States touched on the work done by the Global Counterterrorism Forum, which has held hundreds of meetings with countries since 2011, noting that the Special Rapporteur had participated in a recent meeting. He also noted the work of the Financial Action Task Force in setting standards for combating terrorism financing and asked how States can ensure civil society engagement through such platforms.

Spain's delegate shared his concern that certain countries consider the death penalty as an appropriate response to terrorism. 'We can only fight terrorism with peaceful methods,' he stressed, adding that countries in West Africa are moving in the right direction in this regard.

The representative of Switzerland underlined the need for soft law norms to be inclusive, taking into account the interests of civil society actors and rights defenders. She expressed concern about potential risks in formalizing the informal nature of the procedure. On similar lines, the Netherlands' representative asked about how to ensure better implementation on the ground.

Ireland's delegate asked what can be done on a multilateral level to ensure the meaningful inclusion of civil society actors in counter‑terrorism architecture. Meanwhile, the representative of the European Union asked what could be done to enhance human rights compliance, aside from strategies outlined in the report, including financial support for the Office of the United Nations High Commissioner for Human Rights (OHCHR), and the hiring of specialized staff with human rights law expertise.

The United Kingdom's representative asked how Member States can facilitate the involvement of civil society stakeholders, including United Nations experts. The representative of the Russian Federation said that human rights is used as a pretext for 'geopolitical machination' and called for some States to renounce their 'notorious policy of double standards'. He stressed that terrorism cannot be justified under any circumstance, adding that this must be the 'point of departure' for all dialogue on counter‑terrorism. The representative of Kazakhstan mentioned the Special Rapporteur's recent visit to the country.

Ms. NÍ AOLÁIN, responding to comments by Spain and the Netherlands, said while she is 'painfully aware' of the challenges faced by States in regulating violent extremism, the inconsistent way it is defined impinges on fundamental rights and freedoms. States' expansive definition of extremism is 'extremely worrying', she said, underlining that counter‑terrorism measures must not be used on 'those who simply think differently'. She went on to agree with the representative of Spain's 'important comments' on the death penalty, agreeing that she too is deeply concerned about its use in response to terrorism.

On the question raised by Ireland's delegate, about the meaningful participation of civil society, she said that sporadic visits by civil society members does not constitute systematic engagement. While it might be painful and difficult for States to listen to such feedback, such efforts resulted in better counter‑terrorism policy and practice.

To the concern raised by Switzerland's representative, on the risks of hardening processes, she said that transparent guidelines are more likely to be implemented. Greater transparency is critical, she emphasized, pointing out that the websites of the Global Counter‑Terrorism Strategy and the Financial Action Task Force are 'inaccessible even to a Special Rapporteur trying to figure out what they are doing', and certainly would not be comprehensible to the public. Thanking the United States and the Netherlands for inviting her to a meeting with that group, she recalled that she was last invited in 2012, adding that 'being brought in in an ad hoc and inconsistent way is insufficient'.

Turning to the humanitarian exemption in the context of the global regulation of terrorism financing, she said there is a risk of a negative impact on the capacity of civil society to engage in the most precarious and fraught areas on the planet. Finally, she welcomed the openness and transparency of Kazakhstan to her recent visit, noting that States like Kazakhstan, as well as Belgium and France, understand that there are 'costs' to opening themselves to scrutiny. She called Kazakhstan's repatriation of its children and women from conflict sites in Syria and Iraq this May 'exemplary', in light of other States leaving women and children in perilous situations.

The representatives of Mexico and China also spoke.

Independence of Judges

DIEGO GARCIA-SAYAN, Special Rapporteur on the independence of judges and lawyers, recalling his recent missions to Honduras and Uzbekistan, focused on contemporary threats to judicial independence (document A/74/176). His recommendations concern the fundamental role of the Basic Principles on the Independence of the Judiciary. The judiciary must be independent from other branches of Government; only then can human rights be fully respected. Based on his evaluation, the Basic Principles must incorporate challenges that were not covered when they were adopted in 1985. They should be expanded to address threats resulting from organized crime and transnational corruption, for instance, and revised in a way that demonstrates the fundamental role of judges and prosecutors in fighting corruption.

He went on to say that the Bangalore Principles of Judicial Conduct (2002) define principles such as equality and dignity as necessary for ethical judicial conduct. The integrity of the judiciary goes hand‑in‑hand with independence, he noted, urging the international community to strengthen the current content of the Basic Principles to take into account challenges posed by transnational corruption and crime. He further underscored the importance of guidelines on the role of prosecutors, as well as the establishment of an intergovernmental group of experts. The United Nations should be given a clear mandate to revise the content of the Basic Principles, and thereby improve standards for protecting judges and lawyers from State and non‑State actors and organized crime groups. Protecting judicial independence is not an easy task but it is one that must be tackled.

When the floor opened for questions and comments, the representative of the United States said the rights to freedom, expression and assembly must be safeguarded for judges, objecting to actions by States which undermine judicial independence. Along similar lines, Spain's delegate said the Principles protecting judges are inseparable from human rights, echoing the call that the Basic Principles be revised to cover transnational crime. He underlined the essential role of courts in guaranteeing judicial independence, drawing attention to the European Court of Human Rights.

Liechtenstein's representative agreed that judges and prosecutors should receive adequate training on the exercise of their freedoms, and asked about the nature of such training. Norway's delegate meanwhile said judges and prosecutors must be able to carry out their duties without political or other interference, while Peru's representative expressed support for the Basic Principles, citing threats to judicial authority and underscoring the need for effective national public policies, consolidating the independence of the judiciary and ensuring proper implementation of legal instruments. The European Union's delegate agreed that Basic Principles should cover transnational corruption and underscored the essential role of the United Nations Office on Drugs and Crime (UNODC) in combatting corruption against the judiciary.

Mr. SAYAN replied to the United States representative, underscoring the importance of the rights to freedom, expression and assembly. He referred to situations in which judges express their opinions publicly, or conversely, when they are deprived of their rights. To Spain's delegate, he said the removal of judges from office should be prevented in order to ensure their independence and impartiality. To Liechtenstein's representative, he underlined the need for transparency in selecting judges, and described ethics training for judges and lawyers as essential.

More broadly, he said the role of judges and lawyers is essential in tackling corruption, specifically transnational corruption, since they prosecute the perpetrators of these acts. The United Nations Convention against Corruption is a vital tool to ensure that proper investigation is carried out. International law should regulate the actions and responsibilities of judges, he said, stressing that the system can only work effectively if judges and lawyers are independent. To this end, he drew attention to the Fourteenth United Nations Congress on Crime Prevention and Criminal Justice which will take place in Kyoto, Japan in April 2020. Also participating in the discussion were the representatives of the Maldives, Russian Federation and Lithuania.

The Committee then discussed the report of IDRISS JAZAIRY, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, who was unable to attend today's meeting due to illness.

Discussing the report (document A/74/165), several delegates took to the floor to highlight situations in their own countries where the negative impact of such measures is felt. Venezuela's delegate said that political and financial pressure against developing countries are examples of unilateral coercive measures. China's representative noted that 'a certain country' pursues power politics against her own. Using unilateral measures as a political tool is not only against the Charter of the United Nations but also undermines other countries' efforts to protect human rights based on the needs of their own people.

Syria's delegate meanwhile said unilateral coercive measures against his country were inhumane, destructive and a collective punishment imposed on civilians. Also highlighting the impact of these measures on innocent people, Eritrea's representative wished to know what the Special Rapporteur would recommend in terms of greater international effort, as well as the lack of media attention on the issue. The Chair noted that all comments and questions would be transmitted to the Special Rapporteur.

Representatives of the Russian Federation and Cuba also spoke.

Right to Development

ZAMIR AKRAM, Chair‑Rapporteur of the Working Group on the Right to Development, presented an update on its last session and on discussions in the Human Rights Council. Recalling that the Working Group was set up to monitor progress in promoting the right to development - and to review related reports by States, United Nations agencies and non‑governmental organizations - he said it has also been asked to advise the High Commissioner for Human Rights on the implementation of that right. This mandate has evolved, and the Working Group is not focusing on the elaboration of legally binding standards on the right to development.

At its last session, the Working Group heard general statements on progress made in the promotion of the right to development, held an interactive dialogue with experts on implementation, and began discussion on the elaboration of a draft legally binding instrument. The Working Group recommended that the High Commissioner take measures to ensure balanced allocation of resources. As requested by the Council, he is preparing a draft legally binding instrument, which will take into account resource material from previous Working Group sessions. Ensuring a broad consultative process, he requested the High Commissioner to call for inputs from Member States, and both international and non‑governmental organizations. So far 26 replies have been received, he said, urging all stakeholders to provide constructive contributions to this process.

When the floor was opened, most delegates agreed that the right to development is a basic human right, including that of Pakistan, who noted that with the adoption of the 2030 Agenda for Sustainable Development, international consensus can be reached on the right to development. Iran's representative expressed concern over the negative impact of unilateral coercive measures, particularly against her country, on civilians' right to development.

The Russian Federation's delegate said that the right to development is connected to the protection of the most vulnerable groups of society. The report's recommendations will help form a more secure legal basis for related activities of the international community and enhance the status of the United Nations bodies dealing with this topic. China's delegate said that while the right to development is a fundamental human right, it has not been effectively implemented across the world. She welcomed efforts by the Working Group to develop a legally binding instrument on the right to development.

Mr. AKRAM, on that last point, responded that factors such as unilateral coercive measures and situations of disaster affecting the realization of the right to development will be addressed as part of the drafting of a legally binding instrument.

Also speaking were representatives of Venezuela (on behalf of the Non‑Aligned Movement) and Cuba.

SAAD ALFARARGI, Special Rapporteur on the Right to Development, said his report (document A/74/163) explores the explicit link between the right to development and disaster risk reduction. A natural or human‑made disaster can undo years of development in a matter of hours, stalling progress for the next generation. The number of disaster events per year has been increasing since the 1980s and is likely to continue as a result of climate change, population growth, urbanization and a growing number of people living in coastal areas and flood plains. Disaster risk reduction is part of social and economic development, as catastrophes affect the enjoyment of a range of human rights, including those to life, water and sanitation, food, health and development.

Integrating the right to development into disaster risk reduction efforts requires Governments to promote participation of relevant stakeholders at all stages of planning, implementation and monitoring of related policies, he said. He cited the Sendai Framework for Disaster Risk Reduction in that context, noting that national platforms for disaster risk reduction are instrumental in ensuring that the right to development is integrated into risk reduction strategies, providing space for the participation of all relevant parts of society. He expressed concern, however, that only 65 countries have established national platforms. If risk reduction policies are to be effective, it is crucial that the individuals and communities concerned be well informed of the processes for their creation and outcomes. States should establish mechanisms that provide easy access to information on disaster risk reduction policies and processes, and enact legislation guaranteeing the right to obtain access to information.

In the ensuing dialogue, Egypt's representative, associating with the African Group, echoed the importance of the link between the right to development and disaster risk reduction. Indeed, the time has come to develop a legal instrument on the right to development and he called on Member States to support the Special Rapporteur's mandate. Cape Verde's delegate likewise drew attention to the link between the right to development and disaster risk reduction, stressing that the lasting impact of climate change and natural disasters on the economy is a major concern.

The representative of Zambia, on behalf of the African Group, meanwhile said the benefits of economic growth have not been distributed equitably. The right to development is more important than ever, she said, noting that the focus should also be on social and political development. South Africa's delegate, associating with the African Group, reaffirmed her country's commitment to the right to development, underscoring that natural disasters can steal development gains. The representative of the European Union said the right to development cannot be achieved without gender equality, while Eritrea's delegate said human capital is a critical aspect of her country's national development strategy, requiring significant investments. The representative of Djibouti, associating with the African Group, said developing countries are worst affected by natural disasters, calling for a binding international instrument on the right to development and enhanced cooperation with civil society. Pointing to the low number of countries that have risk reduction platforms, he requested ideas for increasing these figures. The representative of the Maldives said the report rightly notes that developing countries, especially those in the global South, are disproportionately affected by disasters. While it cautions that small island developing States face existential threats, it does not provide for any special measures to be taken and she advocated for a targeted approach within national frameworks to address the vulnerability of children, especially those with disabilities.

Mr. ALGARAFI replied that more attention should be given to gender, recalling that women are often victims of disasters and must be given special attention. Both disaster reduction and the Sustainable Development Goals must be at the centre of attention, he said, underscoring that international cooperation remains the responsibility of all.

Also speaking were the representatives of Cuba, Azerbaijan, Indonesia, Iran and China.

Promotion of Equitable International Order

LIVINGSTONE SEWANYANA, Independent Expert on the promotion of a democratic and equitable international order, highlighted the important role of public participation and decision‑making in global governance spaces in fostering an equitable international order. Intergovernmental and multisectoral groupings such as the Group of Seven (G‑7), the Non‑Aligned Movement and the Bildenberg Meeting play a considerable role in developing the framework and function of the international order, in parallel to the United Nations. Recalling a series of meetings with members of these groupings, as well as with experts and representatives of multilateral institutions such as the Organization for Economic Cooperation and Development (OECD), which he undertook for his report (document A/74/245), he stressed the importance of diverse forums in coordinating responses to transnational challenges such as climate change and fair trade. However, such organizations must be more transparent, and have better implementation mechanisms in place to ensure better outcomes, he said.

When the floor opened for questions and comments, States highlighted their support for an equitable international order, with the representative of Maldives underscoring that such an order must consider the special needs of small island developing States like its own. With that in mind, he asked the Independent Expert to describe possible avenues for widening the space for such countries to participate more fully in the multilateral process.

The Russian Federation's delegate said a constructive dialogue between Governments and civil society will assist joint approaches to problems that have an impact on the international order. The report is biased in favour of subjects such as the discrimination of certain sectors of society and marginalized groups, he said, which detracts from its general thrust. He asked why the Independent Expert pays attention to these aspects and how these decisions squared with his mandate. Cuba's delegate said the desire to achieve a democratic international order is being eroded. The United States withdrawal from agreements such as the Paris Agreement on climate change is an example of a decline in multilateralism.

Mr. SEWANYANA replied that an equitable global order requires respect and adherence to the Charter of the United Nations. There is no room for unilateral coercive measures; they pose a real threat to multilateralism. Member States must act collectively on all matters that threaten global stability, peace and security, he said, noting that he has received testimonies from citizens around the world who are suffering under these measures.

He went on to say that if action is collective, even small States will have their concerns heard. He agreed that democratic participation is important. If it is going to be enhanced, then there should be no room for reprisals. If there are any threats to any group of people by any Member State, then it will be difficult to realize democratic participation.

Also speaking in the interactive dialogue were representatives of Venezuela (on behalf of the Non‑Aligned Movement) and China.