I have been considering the recent moves by the Human Rights Council to begin considering a treaty  to replace/amplify/substitute/supersede the Guiding Principles for Business and Human Rights that the HRC has itself only recently and unanimously endorsed.  See Larry Catá Backer, The Guiding Principles of Business and Human Rights at a Crossroads: The State, the Enterprise, and the Spectre of a Treaty to Bind them All (July 5, 2014).

It is in this context that the insights of John Ruggie continue to be especially important.  See HERE and HERE.  John G. Ruggie, is the chair of the Institute for Human Rights and BusinessInternational Advisory Board, and is the Berthold Beitz Professor in Human Rights and International Affairs at Harvard’s Kennedy School of Government and Affiliated Professor in International Legal Studies at Harvard Law School. From 2005-2011 he served as the UN Secretary-General’s Special Representative for Business and Human Rights (and HERE). In June 2014 he received the Harry LeRoy Jones Award of the Washington Foreign Law Society, honoring “an individual who has made an outstanding contribution to the development and application of international law.”

His most recent essay, Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors, follows. It appeared originally as a Commentary for the Institute for Human Rights and Business.

The most valuable insight from the essay can be drawn from the larger picture Professor Ruggie paints.  It is clear that the great ideological differences that marked the Cold War years has not disappeared--they have merely been transformed to fir into the new realities of international relations.  At its heart is the key and fundamental difference among states in this respect:  on one side are aligned states whose political and economic orders are grounded in the premise that social, economic and cultural rights are the pathway to the development of civil and political rights.  Within this group there are powerful states who believe that such rights are better understood as obligations of states rather than as inherent in individual human dignity as a force to constrain state action. (Discussed in Backer, Larry Catá, China's Corporate Social Responsibility with National Characteristics: Coherence and Dissonance with the Global Business and Human Rights Project (June 9, 2014)). On the other are states, for the most part developed states, for which a central element of social, political and economic organization are centered on civil and political rights, from out of which social, economic and cultural rights may be attained. (Comparison in Backer, Larry Catá, Privatization, the Role of Enterprises and the Implementation of Social and Economic Rights: A Comparison of Rights-Based and Administrative Approaches in India and China (March 24, 2014). George Washington International Law Review, Vol. 45, No. 4, 2013). There are three points of conflicts among these world views in the construction of transnational systems of norms for business and human rights. First is the role of the state (as a central element of normative and enforcement systems or as one of many stakeholders and operators of that system).  Second, centers on the content of those norms, an area within which there remains substantial divergence among the community of nations and between them and global human rights stakeholder communities.  And third, the role of public international bodies as an autonomous source of legislation and implementation, or merely as the inter governmental construct serving only in a ministerial capacity. Professor Ruggie wisely suggests caution and compromise--principled pragmatism--if the object is to accommodate these distinct views in a workable system.  For those who view the treaty exercise as just another front in the great battle among these divergent world views for supremacy, the these efforts will, like those of the past, produce failure in the status of the dis-equilibrium that passes as the status quo. And this leads ultimately to underline the value of Professor Ruggie's final point--the need to preserve and intensify the work of operationalizing the Guiding Principles for Business and Human Rights even as the international community confronts its demons int he context of the current discourse on the construction of a treaty for business and human rights.

Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors

1. Weak Political Mandate The treaty sponsors have the thinnest of political mandates. In addition to Ecuador, the resolution proposing the IGWG was co-sponsored by Bolivia, Cuba, South Africa, and Venezuela. The vote was twenty in favor, fourteen against, with thirteen abstentions. Thus, the proposal did not win the support of a majority of Council members, only a plurality. The home countries of the vast majority of the world’s transnational corporations were opposed. The European Union and the United States not only voted against the resolution, describing it as polarizing and counterproductive; both also stated that they would not participate in the negotiating process. Although China voted in the affirmative, in explaining its vote it laid down tough conditions which make it clear that its support should not be taken for granted. [9] Apart from the sponsors, all Latin American members, including Brazil, abstained. The largest bloc of affirmative votes came from African members—nine in all.
   In stark contrast, the day after the deeply divided vote on the Ecuador proposal the Council adopted a second resolution, introduced by Argentina, Ghana, Norway, and Russia. It extends the mandate of the inter-regional expert working group the Council established in 2011 to promote and build on the UNGPs, and requests the High Commissioner for Human Rights to facilitate a consultative process with states, experts, and other stakeholders exploring “the full range of legal options and practical measures to improve access to remedy for victims of business-related human rights abuses.” [10] This resolution was adopted by consensus, requiring no vote. There may be a message to the treaty sponsors in the difference between these two outcomes.

2. Scope of Proposed Treaty The resolution establishing the IGWG assigns it the mandate “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” [11]
   A footnote defines “other business enterprises” in a way that is intended to exclude national companies. Thus, to illustrate, the language of the proposed treaty would have covered international brands purchasing garments from the factories housed in the collapsed Rana Plaza building in Bangladesh, but not the local factory owners producing those garments and employing the more than 1,100 workers who died and the 2,500 injured.
   The core sponsors of the resolution may have found this formulation to be useful in putting together their voting coalition. But it poses two enormous impediments to future progress. First, an exclusive focus on transnational corporations has always triggered strong opposition from their home countries, of which there are now many more, and from a greater diversity of countries, than in the past, as well as from international business. In this instance, it has also dampened the enthusiasm of civil society organizations for the initiative. As Arvind Ganesan of Human Rights Watch wrote when the resolution was adopted: “A fundamental flaw lies in Ecuador’s insistence that the treaty focus on multinational companies, even though any company can cause problems and most standards, including the UN [guiding] principles, don’t draw this artificial distinction.” [12] Virtually all subsequent NGO statements have raised a similar objection, because for victims the corporate form of the abuser is irrelevant.
   Second, the definition of “other business enterprises” contained in the resolution makes no sense either in logical or legal terms. Here is what it says: “’Other business enterprises’ denotes all business enterprises that have a transnational character in their operational activities, and does not apply to local businesses registered in terms of relevant domestic law.” To begin with, there is no meaningful distinction between “transnational corporations” and “enterprises that have a transnational character.”
   So the term “other business enterprises” is redundant and plays a purely rhetorical role in the resolution, perhaps intended to convey the impression that business enterprises other than transnational corporations are contemplated within the scope of the treaty. More importantly, transnational corporations’ subsidiaries are typically required to incorporate under “relevant domestic law,” often in joint ventures, including with state-owned enterprises or other corporate forms that classify as local businesses. And at the same time, a growing number of local companies conduct business across borders, and thus may be said to have a transnational character. How do all these structures and relationships get disentangled? Given the extraordinary level of sophistication these days in what corporate legal strategists call “legal entity optimization” of firms, this definition is unlikely to survive the first round of critical scrutiny and go on to serve as the basis of any viable treaty instrument.  

3. Scale of Proposed Treaty The proposed treaty is not addressed to specific human rights abuses. Rather, it seeks to establish an overarching international legal framework—a global constitution of sorts—governing transnational corporate conduct under international human rights law. The idea of establishing such an overarching legal framework through a single treaty instrument may seem like a reasonable aspiration. But as I have argued previously, neither the international political or legal order is capable of achieving it in practice. [13] The crux of the challenge is that while business and human rights may be a single label, it is not so discrete an issue-area as to lend itself to a single set of comprehensive and actionable treaty obligations.
   Politically, business and human rights exhibits extensive problem diversity, institutional variation, and conflicting interests across and within states. This challenge only increases as the number of home countries of multinationals grows (note, for instance, China’s remarks, quoted earlier). On the legal side, the International Law Commission documented nearly a decade ago that the predominant trend in international legalization is the fragmentation of international law into separate and increasingly autonomous spheres. Its seminal report to the UN General Assembly concludes that “no homogenous hierarchical meta-system is realistically available” within the international legal order to resolve detailed differences among the separate spheres, noting that this would have to be worked out more discretely in the realm of practice.[14]
   The category of business and human rights is a case in point: it encompasses too many complex areas of national and international law for a single treaty instrument to resolve across the full range of internationally recognized human rights.[15]
   Any attempt to do so would have to be pitched at such a high level of abstraction that it would be largely devoid of substance, of little practical use to real people in real places, and with high potential for generating serious backlash against any form of further international legalization in this domain—as we already began to witness in the recent Council IGWG debate.
   This is not an argument against further legalization, but for carefully crafted international legal instruments—“precision tools” as I have called them—building on existing foundations and focused on specific governance gaps that other means are not reaching.[16] I am well aware of what some call the “expressive” function of law, in contrast to its problem-solving role. But the field of international human rights does not lack for expressive texts; what is in short supply are specific actionable paths capable of generating cumulative progress.[17]

4. Record in Implementing UNGPs A final challenge facing treaty sponsors concerns the relationship between their initiative and the UNGPs, endorsed just three years ago. Every country that spoke in the IGWG debate, including Ecuador, stressed the importance of implementing and building on the UNGPs. Yet the main criticism of the treaty proposal by the U.S., the European Union, and others characterized it as a distraction from, if not an outright attempt to undermine, the UNGPs. How could this be so? Here is the problem: most states that voted in favor of initiating treaty negotiations have done little if anything to implement and promote the UNGPs within their own countries, regions, or globally. In contrast, other developing nations, many OECD countries, public and private international agencies, and hundreds of companies have been moving on this front, albeit not always as rapidly and robustly as one might wish, while a growing number of NGOs and workers organizations have developed increasingly detailed policy and legal reform proposals based on the UNGPs.
   Going forward, the fact that many of the most ardent treaty proponents have done least to act on the UNGPs poses a fundamental challenge for treaty advocates. Given Ecuador’s own conjecture that a treaty may be a decade or more away, what do they plan to offer in the interval to achieve practical progress on the ground? Will they now take steps toward instituting the UNGPs—as an interim measure if nothing else? Will they explain how the treaty is intended to build on and strengthen the foundation established by the UNGPs? If not, they will fuel the suspicion voiced by opponents that the treaty initiative has less to do with achieving practical improvements in business and human rights than it does with using this sensitive issue in the pursuit of other international political aims.
   

   Suggested Next Steps

   If Ecuador and its supporters hold fast to their current positions then their effort can lead to only one of two possible outcomes. Either the negotiations drag on for a decade or more and follow the path of the 1970s code of conduct negotiations; or they manage to persuade enough developing countries to adopt such a treaty text, but which home countries of most transnational corporations do not ratify and, therefore, are not bound by. Either outcome would represent another dead end, delivering nothing to individuals and communities adversely affected by corporate conduct.
   On the assumption—and in the hope—that this is not their intent, what are some steps the treaty sponsors could take to put the negotiations on a more constructive path? I briefly enumerate seven.
   

   1. Having the right chair of the IGWG is critical to obtain any agreement around these very complex issues. It is the prerogative of the sponsors to chair the process themselves, but they would be wise to consider appointing a respected third party, say, a former Secretary-General or High Commissioner, with the latitude to focus on consensus-building rather than the pursuit of strong national positions.
      
   2. The agenda for IGWG meetings should encourage presentation of all views, including by stakeholders who see no need for an overarching treaty or any other kind. All regions should be involved in the preparations well in advance and have the same right to help shape the agenda.
      
   3. The mandate calls on the IGWG to address the human rights conduct of “transnational corporations and other business enterprises.” The sponsors would be well advised to take those terms literally, in their ordinary language sense, and include “all other business enterprises” within the scope of the negotiations, rather than trying to base the drafting exercise on a meaningless distinction between “transnational corporations” and “corporations that have a transnational character.”
      
   4. The Guiding Principles succeeded because states, business, and a significant segment of civil society each felt a sense of ownership in them. Therefore, every effort should be made to include civil society and business in consultations. The full range of civil society representatives should be invited to participate, including human rights defenders that play an important role in promoting corporate respect for human rights and corporate accountability for human rights violations. Representation of business should not be limited to the accredited international business associations but also include individual firms, from all regions.
      
   5. Business and human rights comprises an enormously complex set of issues, and one cannot expect delegations to work those out without a clearer sense of what an international instrument could conceivably look like. Basic research into relevant precedents/models, needs, scope and other such information is critical to support productive negotiations. It is imperative that research is initiated early in the process, and that it is based on a broad range of perspectives and inputs, including expertise in corporate law and international investment law.
      
   6. Everyone agrees that even with the best of political will it would take long time to develop a viable international instrument. Therefore, it should be made clear from the outset not only that this initiative is intended to complement and build on the UN Guiding Principles, but also how.
      
   7. Finally, there is a need for all states, in all regions, to step up efforts to implement the UNGPs. Where the UNGPs are being acted upon and developed further they help reduce the overall incidence of corporate-related human rights harm and provide for sources of non-judicial remedy that did not exist before. No future treaty, real or imagined, can substitute for the need to achieve further progress in the here and now. Privileging the long-term goal of formulating an international treaty without a commitment to acting on the UNGPs today has little value for victims in the short and medium term.
      

   
   

   ---

   [1] See Branislav Gosovic and John Gerard Ruggie, “On the Creation of a New International Economic Order: Issue-Linkage and the Seventh Special Session of the UN General Assembly,” International Organization, 30 (Spring 1976); and "The 'New International Economic Order': Origins and Evolution of the Concept,” International Social Science Journal, 28 (Autumn 1976).

   [2] http://unctc.unctad.org/data/e73iia11a.pdf.

   [3] See Tagi Sagafi-nejad, The UN and Transnational Corporations: From Code of Conduct to Global Compact (Bloomington: Indiana University Press, 2008).

   [4] UN Document E/CN.4/Sub2/2003/12/Rev. 2 (26 August 2003).

   [5] UN Document E/CN.4/DEC/2004/116 (20 April 2004).

   [6] “Corporate Influence on the Business and Human Rights Agenda of the United Nations,” Working paper issued by Misereor, Global Policy Forum, and Brot für die Welt,” June 2014, p. 5,  http://www.globalpolicy.org/home/221-transnational-corporations/52638-new-working-paper-corporate-influence-on-the-business-and-human-rights-agenda-of-the-un.html.

   [7] http://www.treatymovement.com/. It is noteworthy that the major global human rights organizations, such as Amnesty International and Human Rights Watch, did not join the alliance, reflecting doubts about the timing and efficacy of the Ecuador proposal.

   [8] For the full text see UN document A/HRC/17/31. The UNGPs rest on three pillars: the state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; an independent corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved; and greater access by victims to effective remedy, judicial and non-judicial. They comprise thirty-one principles, each with commentary elaborating its meaning and implications for law, policy, and practice. And they encompass all internationally recognized rights, and apply to all states and all business enterprises. I elaborate on the thinking and activities that produced the UNGPs in my book, Just Business: Multinational Corporations and Human Rights (New York: W.W. Norton, 2013).

   [9] China’s delegate stated that their affirmative vote was based on the following “understanding”: that the issue of a business and human rights treaty is complex; that differences exist among countries in terms of their economic, judicial, and enterprise systems, as well as their historical and cultural backgrounds; and that it will be necessary, therefore, to carry out “detailed and in-depth” studies, and for the treaty process itself to be “gradual” and “inclusive.” See http://webtv.un.org/search/ahrc26l.22rev.1-vote-item3-37th-meeting-26th-regular-session-human-rights-council/3643474571001?term=humanrightscouncil&sort=date.

   [10] UN Document A/HRC/26/L.1/Rev.1.

   [11] UN Document A/HRC/26/L.22/Rev. 1.

   [12] Arvind Ganesan, “Dispatches: A Treaty to End Corporate Abuses,” available at http://www.hrw.org/news/2014/07/01/dispatches-treaty-end-corporate-abuses.

   [13] See “A Business and Human Rights Treaty? International legalisation as precision tools,” http://www.ihrb.org/commentary/business-and-human-rights-treaty-international-legislation-as-precision-tools.html.

   [14] See International Law Commission, “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law,” UN Document A/CN.4/L.682 (13 April 2006). Of course, there is the category of jus cogens, the name given to norms of general international law that permit no derogation under any circumstances. But even leaving aside various doctrinal and practical challenges, jus cogens norms do not encompass the broad spectrum of human rights harms with which businesses may be involved.

   [15] For starters, I count human rights law, labor law, anti-discrimination law, health and safety law, privacy law, consumer protection law, environmental law, anti-corruption law, humanitarian law, criminal law, investment law, trade law, tax law, property law and, not least, corporate and securities law.

   [16] See John Gerard Ruggie, “Business and Human Rights: The Evolving International Agenda,” American Journal of International Law, 101 (October 2007).

   [17] This is why I have suggested that one obvious focus for such an instrument would be the worst of the worst: business involvement in gross human rights abuses, such as genocide, extrajudicial killings, and slavery as well as forced and bonded labor. In the case of natural persons, broad consensus exists on the underlying prohibitions, which generally enjoy greater extraterritorial application in practice than other human rights standards. But further specificity is required as to what steps states should take with regard to business enterprises. Such an instrument would have the secondary effect of heightening state and corporate awareness business and human rights issues more generally, much as the Alien Tort Statute did before the U.S. Supreme Court restricted its extraterritorial applicability in the recent Kiobel case. (See “A Business and Human Rights Treaty?” supra, fn. 13). 

United Nations Human Rights Council

27th Session

Opening Statement by

Mr. Zeid Ra'ad Al Hussein

United Nations High Commissioner for Human Rights

Geneva, 8 September 2014

The mandate of my Office encompasses all human rights, for all people. Its priorities span discrimination; the rule of law and ending impunity; poverty; violence; continuing efforts to improve international human rights mechanisms; and widening the democratic space. In recent months, OHCHR’s concerns have been numerous. They have included severe acts of discrimination in many regions; widespread violations of economic and social rights due to failures of governance and other concerns; apparent violations of human rights in the context of counter-terrorism; sexual violence; attacks motivated by stereotypes and hatred of many kinds; over-incarceration; the death penalty, and many other issues.

But my first address to this Council takes place at a time when conflicts in the Middle East and North Africa regions, in particular, are escalating dramatically. In Syria, more than 190,000 identified persons were killed between March 2011 and April this year, according to an analysis released by OHCHR last month. According to UNHCR, more than 3 million Syrians have fled their country and 6.5 million more are internally displaced: in other words, almost half the people in Syria have fled their homes. Those wounded, orphaned, missing, detained, "disappeared", displaced, malnourished, deprived of healthcare and denied other critical services add to the incalculable human cost of this conflict.

The latest report by the Independent International Commission of Inquiry on the Syrian Arab Republic brings fresh evidence that this ancient civilisation has devolved into a slaughterhouse, where children are tortured in front of their parents or executed in public, amid wanton killing and destruction. That report will be fully explored in the course of an interactive dialogue during this session.

Spreading outwards from its initial anchorage in the chaos of the Syrian conflict, the Takfiri or so-called ISIL group that currently in effect controls large swathes of northern Iraq has demonstrated absolute and deliberate disregard for human rights. The scale of its use of brute violence against ethnic and religious groups is unprecedented in recent times, as the Special Session of this Council made clear last week.

I solemnly remind this Council that widespread or systematic attacks on segments of the civilian population because of their ethnic background or religious beliefs constitute a crime against humanity, for which those responsible must be held accountable. I would also like to stress that international law requires that both the State and armed groups take all measures to minimise the impact of violence on civilians, respect the principles of distinction and proportionality when carrying out military operations, and ensure that civilians can leave areas affected by violence in safety and dignity.

From a human rights perspective, it is clear that the immediate and urgent priority of the international community should be to halt the increasingly conjoined conflicts in Iraq and Syria. In particular, dedicated efforts are urgently needed to protect religious and ethnic groups, children – who are at risk of forcible recruitment and sexual violence – and women, who have been the targets of severe restrictions.

The second step, as my predecessor consistently stressed, must be to ensure accountability for gross violations of human rights and other international crimes. Impunity can only lead to further conflict and abuses, as revenge festers and the wrong lessons are learned. Accountability, and public acknowledgment of the wrongs that victims have suffered, is important to ensuring that crimes will not be repeated, and the only way to begin to repair a sense of common community in these devastated societies. Iraq, with its new prime minister, should consider accession to the Rome Statute of the International Criminal Court.

The third task – and despite the international community's failure to ensure the first two, I do not believe it is too early to envisage this – must be to take a step back and look at how and why these crises erupted. Underlying patterns of violations and discrimination, including corrupt and discriminatory political systems that disenfranchised large parts of the population, created an inflammable backdrop. Leaders who oppressed or violently attacked independent actors of civil society; institutions that failed to include broadly inclusive participatory processes; a comprehensive failure to promote and protect economic and social rights, as well as civil and political rights – such factors, alongside years of conflict, discouraged the development of tolerant and moderate civil society movements, while the only dissident groups that did flourish underground were extremist ones.

Another example of the need to end persistent discrimination and impunity is the Israel-Palestine conflict, with the recurring violence and destruction evident in the repetition of crises in Gaza. The most recent outbreak of armed conflict has had a particularly devastating toll in death, suffering and destruction, compounding what was an already precarious situation due to the blockade imposed by Israel in 2007. As of last week, preliminary estimates are that 2,131 Palestinians had been killed during the latest crisis in Gaza, including 1,473 civilians, 501 of them children. 71 Israelis had also been killed, including 4 civilians.

Current and future generations of Palestinians in Gaza and the West Bank, including East Jerusalem, have a right to live normal lives in dignity: without conflict, without a blockade, indeed without the wide range of daily human rights infringements that are generated by military occupation, illegal settlements, excessive use of force, home demolitions, and the Wall that continues to be constructed across the Occupied Palestinian Territory. The seven-year blockade must end, and there must be effective accountability for transgressions committed by all parties. On this point, I note that Israelis have a right to live free and secure from indiscriminate rocket fire.

I trust that this Council's Commission of Inquiry on the Occupied Palestinian Territory will be able to acquit its task of creating clarity about facts with full engagement from both sides. It is also imperative that all parties to the conflict in Gaza fully comply with their obligations under international humanitarian law.

Since this Council last convened, the situation in Libya has deteriorated very rapidly, and represents a growing threat to regional security. Multiple armed groups are indiscriminately shelling heavily populated areas through the use of heavy artillery and even aircraft, leading to the death and injury of civilians, including children. Living conditions for civilians in Tripoli and Benghazi have steadily deteriorated, with food, fuel and electricity in diminishing supply. Health facilities have been severely affected by the violence, and common criminality is on the rise. I urge the parties involved in these hostilities to cease all violations of international law and end the fighting.

We remain concerned about the situation in Ukraine. OHCHR's latest monthly report gives a full picture of current human rights challenges, especially in the east, where at least 3000 people have been killed since mid- April this year. The Council will specifically deal with this situation later in the session, and an official OHCHR report will be presented at that time. I must, however, reiterate that every effort must be made by both the Ukrainian government and the armed groups – as well as by neighbouring States, including the Russian Federation – to protect civilians in this deplorable conflict, and to ensure compliance with international law.

In the Central African Republic, a near-total absence of State control over most parts of the country continues to facilitate impunity for violations. Ex-Séléka and anti-Balaka forces continue their attacks, with the civilian population the main victims. The international Commission of Inquiry on CAR has already concluded that there are reasonable grounds to believe that all sides of the conflict have perpetrated serious violations of international humanitarian and human rights law since January 2013. In its second phase, the Commission will carry out investigations beyond Bangui. 68 OHCHR staff members will participate in the Human Rights Component of the UN peacekeeping mission, a further indication of how the Rights Up Front agenda is taking shape.

In South Sudan, despite a recent lull in fighting, we have continued to observe serious human rights violations by both parties to the conflict. There will be detailed discussion of this situation during a panel discussion on 24 September. Regarding the Democratic Republic of Congo, I was appalled to learn recently that more than one in three men surveyed in the North Kivu province admitted that he had committed sexual assault. I have been tremendously inspired by the work of Dr. Denis Mukwege, who has noted how “the bodies of women became the battlefield of conflict” in the DRC. This underscores the need for the Government to implement recommendations regarding women's human rights and preventing sexual violence. A report on the DRC will also be presented at this session of the Council.

May I say also that I have been deeply impressed by the work of this Council's Commission of Inquiry on human rights in the Democratic People's Republic of Korea. I hope the General Assembly and Security Council will give this report their fullest attention, and take steps to ensure accountability for those who have perpetrated crimes against humanity.

Moreover, I attach great importance to the investigation on Sri Lanka mandated by this Council, on which OHCHR will report later in the session. I encourage the Sri Lankan authorities to cooperate with this process in the interests of justice and reconciliation. I am alarmed at threats currently being levelled against the human rights community in Sri Lanka, as well as prospective victims and witnesses. I also deplore recent incitement and violence against the country's Muslim and Christian minorities.

Excellencies,

In the resonant words of the Preamble to the Universal Declaration of Human Rights, “Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Societies that uphold human rights are more resilient, more sustainable and thus more secure. In raising an independent voice that can advocate for the voiceless, in identifying violations and gaps in States' protection, and assisting with technical capacity building, OHCHR is, in a very real sense, working to benefit all Member States.

I am determined to further strengthen that highly constructive engagement with Member States on both bilateral and multilateral human rights issues, and I encourage Member States to propose new methods of engagement, including transparent and cross-regional gatherings in informal settings. In strengthening their national human rights capacities and infrastructures, I will count on our close cooperation and partnership with UN Country Teams worldwide, as well as regional human rights mechanisms, bilateral donors and other stakeholders active at country level, particularly national human rights institutions.

OHCHR’s mandate is to ensure that universal human rights norms are upheld, making no distinction between countries, and dealing impartially and forcefully with all civil, political, economic, social and cultural rights. Those universal norms are further clarified thanks to the persistent work of the independent, expert-led human rights mechanisms. As the custodians of human rights norms, the Treaty Bodies are uniquely qualified to grapple with challenging issues; theSpecial Rapporteurs are the eyes and ears of this Council. Both are practical sources of expert guidance for national policies, laws and practice, while the Universal Periodic Review is an unprecedented tool to maintain a constant review of human rights developments in all member States.

Like my predecessors, I will give utmost importance to the findings of all these human rights mechanisms. I will seek to ensure that greater priority is given to implementation of recommendations made by the UPR, the Treaty Bodies and Special Procedures, for real impact on human rights on the ground. I will also be focusing on working with my United Nations counterparts for greater integration of these recommendations into their country programmes. Regarding resolution 68/268 on Treaty Body strengthening, the past six months have seen significant follow-up to this landmark document, and I will pay careful attention to its implementation by States and by the Treaty Bodies themselves.

But the work done by OHCHR, by the Special Procedures, by Treaty Bodies, this Council itself, and indeed, by Member States, could never be achieved without the greater efforts of civil society actors. We need their continuing support and contributions to realise progress. I encourage the Council to strengthen its constructive engagement with civil society actors, and to ensure that their voices can be raised safely and without reprisals.

Freedoms of expression, association and peaceful assembly are rights that enable people to share ideas, form new thinking, and join together with others to claim their rights. It is through the exercise of these public freedoms that we make informed, considered and intelligent decisions about our development. To restrict them undermines progress. We must acknowledge the value of civic contribution, build the capacity of marginalised voices, ensure a place at the table for civil society actors, and safeguard their activities – including the activities of those who cooperate with this Council, its Special Procedures and Commissions of Inquiry. I take this opportunity to echo the Secretary-General’s condemnation of acts of reprisal against individuals by reason of their engagement with the United Nations.

Excellencies,

In a year from now, the Sustainable Development Goals will replace the Millennium Development Goals. The SDGs will be negotiated over the coming twelve months, and have the potential to transform the very notion of development.

The MDGs popularized the powerful message that development is more than free markets and economic growth. It is about how healthy people are, what kind of education they enjoy, whether they have access to food and live in a healthy environment. However, the MDGs were blind to inequity and incomplete: it has become clear that the new goals must integrate the human rights agenda, including the right to development across the board.

The enduring effects of the global economic crisis have challenged the realization of economic and social rights. They have exacerbated inequalities and deprived many of jobs, adequate health care, education, social protection programmes, housing, clean water and food. The impact of the crisis and austerity measures has been particularly acute for the most vulnerable and marginalized in society.

The SDGs need to aim not only for freedom from want – including the rights to health, education, decent work, food, water and sanitation – but equally, freedom from fear; and here I would highlight rights relating to access to justice, personal security and an equal voice and right to participate in public affairs. Perhaps no recent phenomenon could illustrate the indivisibility and interrelatedness of human rights better than the Ebola outbreak that is currently affecting several West African countries. The lack of adequate infrastructure for a life of dignity – including hospitals and sanitation – and conditions leading to distrust and civil disengagement with authorities, have compounded the effects of this terrible epidemic, placing human lives in grave danger as well as undermining peace and security, and development.

Discrimination and inequalities of all kinds prevent people from achieving their full potential, and the SDGs must aim to overcome them. We also need a renewed global partnership to create an enabling environment for the right to development – not only through international aid and technology transfer, but also by reducing existing inequities in global governance, and by aligning trade, finance and investment policy explicitly and systematically with human rights standards and principles.

Finally, the goals will only make a difference to people if progress can be effectively monitored – and if decision-makers can be held to account for shortcomings. An important effort needs to be made to construct an accountability framework for the SDGs, with indicators that can measure the actions and omissions of private business and public authorities, and flag where implementation is faltering. Clearly, this accountability framework should aim at maximum involvement by civil society and the general public.

OHCHR has been particularly concerned by the human rights situation of migrants around the world. From the Mediterranean to the Indian Ocean and the deserts of the United States of America, we continue to see countless avoidable deaths of migrants in the course of their journeys; brutal forms of human trafficking; ill-treatment at borders; and prolonged detention in deplorable conditions. Many migrants, including documented migrants, also suffer forced labour or dangerous, exploitative or degrading working conditions, and these violations against migrants are frequently characterised by the victim's inability to gain redress from State officials.

Along the borders of Europe, including most recently in the Spanish autonomous city of Melilla, reports allege forced returns, pushbacks and ill treatment of migrants by security forces. Italian coastguards have assisted more than 100,000 migrants arriving by sea this year, but despite that good work, almost 1900 people have died crossing the Mediterranean, and more must be done by the EU and its member states to deal with this tragic situation.

In Gulf Cooperation Council countries, attempts to develop better governance regarding labour migration from Asia have stalled, and exploitative control over migrant workers by their employers remains the dominant model. Conditions for migrant workers in the fishing industry in Thailand were recently made notorious by media reports, but that industry is not unique. I am also concerned by the shooting of Bangladeshi strawberry pickers in Greece after they had asked for months of back pay.

I must emphasise that the detention of asylum seekers and migrants should only be applied as a last resort, in exceptional circumstances, for the shortest possible duration and according to procedural safeguards. Australia's policy of off-shore processing for asylum seekers arriving by sea, and its interception and turning back of vessels, is leading to a chain of human rights violations, including arbitrary detention and possible torture following return to home countries. It could also lead to the resettlement of migrants in countries that are not adequately equipped. In Cyprus, migrants, including children, are routinely detained for periods that exceed 18 months, in prison-like conditions.

I am also concerned by reports of detention in the United States of America of some of the more than 50,000 unaccompanied children who have arrived there since October 2013. They have been fleeing violence and deprivation in countries such as El Salvador, Guatemala and Honduras; some are as young as five years old. While the underlying causes of their flight involve poverty and inequality, the proximate trigger is their urgent fear of gang violence targeted specifically against children, as potential members of such gangs.

These root causes in the countries of origin and destination must be tackled in a concerted manner, at the regional level. Furthermore, the abuses suffered by these children in transit – including killings, kidnappings, disappearance, extortion, sexual violence and detention – are shocking and must be addressed. The impunity enjoyed, at every step of the journey, by those who profit from smuggling these children is unacceptable.

The treatment of non-nationals must observe the minimum standards set by international law. Human rights are not reserved for citizens only, or for people with visas. They are the inalienable rights of every individual, regardless of his or her location and migration status. A tendency to promote law enforcement and security paradigms at the expense of human rights frameworks dehumanises irregular migrants, enabling a climate of violence against them and further depriving them of the full protection of the law.

Mr. President,

The extraordinary range and significance of the topics that I have just outlined underscore the breadth of OHCHR’s mandate and the importance of the work done by its staff – often in very difficult circumstances, particularly in a number of our field offices. In the years to come I look forward to enriching the deeply valuable relationship between OHCHR and this Council. My Office will be open to dialogue with all stakeholders; and within the limits of our resources, we will extend every possible assistance to States, to heighten their protection and promotion of human rights.

Mr. President, I thank you.

 

Today, the Council on Ethics for the Norwegian Government Pension Fund Global has published three recommendations regarding Repsol S.A. and Reliance Industries. The companies were partners in a joint venture which was conducting oil exploration activities in Block 39 in the Peruvian Amazon. Block 39 is located in an area which is thought to overlap the territories of indigenous peoples living in voluntary isolation.

On 1 December 2010 the Council on Ethics recommended the exclusion of the companies Repsol YPF (now Repsol S.A) and Reliance Industries Limited from the Government Pension Fund Global. In the Council’s view, the exploration activity undertaken by the companies in Block 39 would increase the risk that any indigenous peoples who may be living in voluntary isolation within the block would come into contact with outsiders, leading to potentially serious consequences for these peoples’ life, health and way of living. This would constitute an unacceptable risk of the companies contributing to serious and systematic human rights violations.

On 25 May 2012, the Ministry of Finance requested that the Council on Ethics update its recommendation of 1 December 2010. The Council concluded that the grounds for exclusion were still present.

On 3 April the Council on Ethics revoked the recommendation to exclude the companies from the Fund. Repsol had informed the Council that the company had entered into an agreement to sell its share in the joint venture and confirmed that there is currently no ongoing activity in the block. The foundation on which the recommendation on exclusion was built is therefore no longer present.

The Council’s recommendation not to exclude the companies was submitted to the Ministry of Finance before the Ministry had made a decision on the previous recommendation to exclude them. The Ministry has taken note of the Council’s recommendation.

The recommendations are available in English and Spanish HERE.

‘The question of the existence of uncontacted indigenous peoples in Block 39 is clearly controversial. In this regard the Council finds it noteworthy that neither the government nor the companies have initiated systematic scientific studies with the aim of verifying the existence of isolated indigenous peoples in this area […]. The Council’s task is to assess the risk of future breaches of the Fund’s guidelines. As part of this assessment the Council must adopt a position on whether it is probable that uncontacted indigenous peoples live in block 39. Based on an overall assessment of the available information, the Council concludes that there is a probability that uncontacted peoples are present in the block. The existing uncertainty emanates from the lack of necessary and thorough on-the-ground investigations aimed at determining the presence of these peoples. Insofar as necessary investigations have not been carried out, the Council on Ethics will let this count against those who gain from the question remaining unresolved.’3

‘In light of the fatal and long-term consequences caused by any contact with the outside world, the Council considers that provoking any such contact, which furthermore is unwanted on the part of the indigenous peoples, is tantamount to serious violations of human rights. This is in accordance with the assessment of the Office of the High Commissioner for Human Rights, which determined that forced or undesired contact with uncontacted indigenous peoples violates their human rights.’4

Thousands of students from two dozen schools in Hong Kong skipped classes Monday to protest "dictatorial" control by the Chinese central government over the territory's election rules.

Students began a weeklong boycott with a rally on the campus of Chinese University of Hong Kong, where they demanded that Beijing withdraw its election reform plan and issue an "apology to the Hong Kong people." (Joanna Chiu, DEUTSCHE PRESSE-AGENTUR reprinted at Philly.co., Sept. 23, 2014)

"Lessons in Life"
Surya Deva

As students from several universities and colleges prepare for a week-long boycott of classes from next Monday, to protest against the National People’s Congress Standing Committee decision on political reform for Hong Kong, the local community is responding in diverse ways.

While some are sympathetic to students’ right to assert their freedom of speech and expression in a peaceful way, the anti-Occupy Central movement has gone to the extent of establishing a hotline for people to report incidents of class boycotts. Others have cautioned students about staying away from classes, saying that doing so might adversely affect their learning.

Are students really going to suffer a lot academically by boycotting classes for a week? Opinions may differ. But I think they would benefit, overall, if they missed classes for a short time for a legitimate cause. In fact, if they were to take the class boycott as a “learning group project”, they could accomplish what is generally not achievable within the four walls of a classroom.

There are several major limitations of the dominant learning model currently practised at universities. The first is that we teach in compartments divided first by disciplines (such as politics, business, law, philosophy, mathematics, and so on) and then by separate courses within each discipline.

However, the challenges that graduates face outside educational institutions do not arise within these artificial boundaries. The universal suffrage saga is a case in point: it is a fascinating cocktail of law, politics, ethics, public policy, colonial history, economics, business, international relations and media advertising.

The project of boycotting classes for one week to push for universal suffrage will offer students an unprecedented opportunity to learn collaboratively in an interdisciplinary setting. Students should gain a lot by working with their peers from across the disciplines at all levels.

Students could, for example, apply a cost-benefit analysis to examine the viability and desirability of a temporary class boycott. Also, why not test the behaviour of the relevant parties to the universal suffrage debate with reference to the prisoner’s dilemma? Similarly, law students could explore with students of politics and philosophy the intersection of law, politics and morality.

While management and business students could harness their leadership and and organisational skills before and during the planned boycott, those studying creative media could join with information technology students to develop means to communicate effectively and in an efficient way with a diverse range of people. The second limitation of classroom learning is the lack of adequate opportunities to apply knowledge to diverse and ever-evolving real-life situations. While teachers employ real or hypothetical case studies, those tools are not always adequate.

What Hong Kong is currently experiencing is unique and constantly evolving. Students would develop a better ability to adapt and react to situations by actually experiencing the political saga rather than sitting on the fence and looking through the lenses of others.

The third limitation of our education system is the excessive focus on grade oriented knowledge accumulation. Grades are important, but equally vital for life is developing a social and ethical consciousness.

By participating in political reform on their own terms, students would realise that, sometimes, grades might have to be sacrificed to some extent to uphold paramount principles. Organising a week-long class boycott would also enable students to harness a range of generic soft skills. To begin with, they would learn to communicate concepts such as universal suffrage, representative democracy and constitutional freedoms to peers from diverse disciplines. Since not all students are likely to support the proposed boycott, students could also learn the art of persuasion by trying to convince each other of the pros and cons of the campaign as a means to achieve certain goals.

Despite sincere attempts to build a consensus, disagreements are bound to surface. This should help students to understand the value of agreeing to disagree and respecting diversity of views. The class boycott project should also result in students picking up other skills, including formulating goals, working in teams, developing reflexive strategies, coordinating tasks and analysing scenarios critically. For example, students would need to analyse critically not only the Standing Committee’s decision but also the political situation in Hong Kong as well as on the mainland. Considering the nature of the subject matter, a discussion on how to strike a balance between sacrosanct principles and pragmatism would be inevitable.

After the strike, students may also learn the limitations of protests and the power of constructive engagement. The aim of this boycott is to fight for democracy and freedoms. In the future, students should consider a class boycott to further many other worthy goals as part of their learning projects – for instance, collecting donations to assist the poor, helping the elderly with their daily chores, promoting sustainable living, and building cultural bridges between people from different ethnic, racial or religious communities. Apart from enhancing the capabilities of students, such projects would benefit the whole of society.

This could, however, only happen if we trust our students – the future of Hong Kong. The current generation should share space with students in shaping the future of Hong Kong and mainland China. The need of the hour is to nurture active, reflective and socially responsible learners who have the capacity to make informed decisions.

"No Benefit for Hong Kong if Election System stays the Same,"
Bernard Chan


I have previously argued that legislators and the community in general should accept the National People’s Congress Standing Committee decision on election methods for 2016-17. I said we cannot ignore Beijing’s view of Hong Kong’s constitution in a national context. And I said that rejecting the proposal would do nothing but delay reform.

I also argued that the package, with its element of universal suffrage, really would be an improvement on the current system. Pro-democrats refuse to accept this. They insist that pro-democracy lawmakers should veto this reform, and indeed the next round of consultation.

In effect, they are claiming that we would be better off with the current system. This makes no sense. Yes, the proposed framework is a huge disappointment to many people. But I wonder if some opponents are so bitter and angry about it that they refuse to admit that it is an improvement.

Let me expand on what I wrote about the nomination process for the 2017 chief executive election. I believe that this process, combined with an election by universal suffrage, will produce a far more representative outcome for Hong Kong. That makes it a real improvement.

It comes down to the prenomination stage of the process. This will not be some sort of secret deal fixed behind closed doors. We will not wake up one morning and read that three (or maybe two) individuals have made it onto the ballot for election. We can imagine a number of individuals – maybe eight or nine, or more – competing at this primary stage.

We cannot say specifically how these contestants will be proposed. The forthcoming public consultation will cover that. But I am confident that this will be a competitive process, in full public view. I am also sure that contenders will come from a range of backgrounds; there is no reason a pro-democrat should not take part.

These primary-stage contenders will need to debate in public on big and sensitive issues. They will need to propose their own platforms on education, welfare, housing, tax, economic policy, consumer rights – you name it. If some of them back policies that the public doesn’t like, you can be sure other contenders will criticise them for it. Public opinion polls will identify those with strong public backing. And they will highlight any that the public dislike.

The 1,200 members of the nominating committee will not be able to ignore public opinion in this primary stage. It would be naive to think that someone hostile to Beijing would get onto the ballot. But that still leaves a lot of possibilities.

If I am wrong – if the whole process is rigged and we get just a couple of unpopular “stooges” on the ballot – the whole election loses any credibility. Opposition groups could probably organize a successful boycott of the universal suffrage election. With a low turnout, the “winner” would be visibly rejected by the electorate. Our governance problems would, if anything, be worse than they are now.

I am pretty sure that officials in Beijing and locally have thought this through.

After the primary stage, there will be two or three candidates on the ballot for a universal suffrage election. They will not get that far without being serious about wanting the job. They will compete for your vote. This is going to be very different from the past.

I am not saying this system will be fully democratic. And I am not claiming that, even with an improved mandate, our government will suddenly be perfect. But this really is better than the status quo.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,