27 June 2006 - Child Rights and the new Human Rights Council 7
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Tuesday 27th June - ORDER OF THE DAY
- Consideration of the report of the Working Group on the Right to Development - continued (9-10am)
- Consideration of the report of the Working Group on the elaboration of an Optional Protocol on the ICESCR (10-11:45am)
- Consideration of the report of the Working Group on the elaboration of a draft Convention on Enforced Disappearance (11:45am - 2pm)
- Consideration of the report of the Working Group on a draft UN Declaration on the Rights of Indigenous Peoples (2:30-6pm)
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Consideration of the report of the Working Group on the Right to Development - continued (9-10am)
The 15th meeting of the Human Rights Council opened this morning by resuming discussions on agenda item 4 and continuing its consideration of the report of the Working Group on the Right to Development. The last statement was made by the delegation of the Philippines who urged the Council to consider favourably the recommendations contained in the Working Group's report. Then the floor was given to NGOs and national institutions.
Most statements expressed support for the chairman's report and called on the Council to extend the mandate of the Working Group and the Task Force for another year, stressing the importance of effective global partnership and a rights-based aproach in promoting the rights to development and MDG goal 8.
Mr Salama, chairperson of the Working Group, took the floor to comment on the statements made. He stressed that the work of the Working Group represented a unique forum in that it allowed the human rights and the trade and financial communities to come together in an organic manner. Debates within the Task Force allow mutual interaction between the two communities at an international level. This, according to Mr Salama, reveals a paradigm shift in the language used within the UN in an era of globalisation.
Mr Salama added that the 7th session of the Working Group showed that evaluating partnerships for development is becoming a concrete process. With the MDGs, it also shows a clear possibility for mainstreaming human rights work in several UN agencies (see paragraph 75 of the report) as well as a real possibility to work within the international financial institutions to start making a difference.
For Mr Salama, the 7th meeting of the Working Group demonstrated the new operationability of the right to development, after a long period of doubt. It is now entering an era of implementation. Moreover, he stressed that, as shown by the 15th criteria of the recommendations adopted in the 7th session report, the Working Group was now in the process of creating an overall environment that will "contributes to a development process that is sustainable and equitable, with a view to ensuring continually increasing opportunities for all". It is a sustainable and long term project now solidly installed in global partnership.
This statement closed the consideration of this agenda item. The Council then moveed on to the consideration of the report of the open-ended Working Group established with a view to considering options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
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Consideration of the report of the Working Group on the elaboration of an Optional Protocol on the ICESCR (10-11:45am)
At 10 am, the Human Rights Council opened the discussion on the report of the open-ended Working Group established with a view to considering options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Ms Catarina de Albuquerque, chairperson of the Working Group, took the floor to present the report of the 3rd session of the Working Group, which took place in February 2006, on the consideration of options on the establishment of an Optional Protocol (OP) to the Covenant.
Ms de Albuquerque updated the Council on the activities of the Working Group since the 61st session of the Commission on Human Rights in Spring 2005 and added that the Working Group concluded its last debate with a discussion on the implication of an OP and how to draft it. It was decided that the chairperson would prepare a paper to serve as a basis for future negotiations. She also asked the Council to decide on renewing the mandate of the Working Group, and reminded that the UN Secretary General expressed his support for such an OP.
Discussion
Many speakers expressed their concern that economic, social and cultural rights were given much less importance internationally than civil and political rights and the International Covenant on Civil and Political Rights (ICCPR). Indeed, Algeria/Africa and Brazil/GRULAC, among others, stressed that in disrespect of the Vienna Declaration and Programme of Action, the ICESCR has no complaints mechanism, which reflects an imbalance compared with the ICCPR.
Some countries (UK, Switzerland and Netherlands among others) still had doubts on the efficacy of such a complaints mechanism. Nevertheless, in the spirit of consensus, some States recognised that a significant body of States were moving the process forward and so accepted that the mandate of the Working Group should be extended in order for the text to be drafted. The UK and Switzerland, however, made it clear that they do not believe that a single text can reflect the differences of approach. The views expressed at the last Working Group session being too varied.
Non-Council member statements followed. The US expressed their view that the Council would be ill-advised to allow the Group to start elaborating a draft OP before consensus has been reached. The Working Group was ill-equipped for such an enterprise, said the US representative.
After all statements were made, Ms Albuquerque took the floor again to respond to comments. She first recommended that the mandate of the Working Group be renewed for at least two years and asked the Council to approve its mandate to allow the chair to conduct consultations on the drafting of the OP.
Ms de Albuquerque explained that the process has taken momentum with regional initiatives taking place between Working Group sessions (regional meeting in Mexico for GRULAC, in Finland for EU, and a possible one in Africa).
She also explained that the process of elaborating an OP is a continuum. The 4th session will follow up naturally from the 3rd session. It is an evolution, not a revolution. What was said in past sessions should constitute the basis for a possible future draft. A climate of trust and confidence was built in the Working Group and is precious and should be maintained.
The meeting was adjourned at 11:45am.
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Consideration of the report of the Working Group on the elaboration of a draft Convention on Enforced Disappearance (11:45am - 2pm)
At 11:45, Ambassador Bernard Kessedjian, chair and rapporteur of the Working Group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, took the floor to present the draft Convention on Forced Disappearance and submit it to the Council for approval. Ambassador Kessedjian explained that his report presented a picture of the status of negotiations on the draft Convention now being submitted to the Council for approval. The overall outcome was balanced, he said, taking into account the most important questions debated, although these often gave rise to arduous negotiations.
Mr Kessedjian reminded the Council that the starting point for the Convention was the Declaration A/RES/47/133 adopted by the UN General Assembly in 1992, as well as the work of the Sub-Commission on Human Rights and the report by Manfred Novak.
Mr Kessedjan proceeded to present the contents of the draft Convention: the text, he said, establishes the absolute prohibition of enforced disappearances (with no exception). It presents it as a crime and even a crime against humanity when practiced on a massive scale, as defined in international law. The greatest innovation of the text lies in provisions relating to issues of detention, through a ban on secret prisons. Indeed, enforced disappearance feeds on gaps in laws, and legal detention can easily degenerate if not properly regulated. The right of victims is also given particular attention in the draft text, with particular provisions for families and in particular children of the disappeared. Indeed, Ambassador Kessedjan stressed that not only families but entire communities can be disrupted after a disappearance. Finally, in terms of the rights of victims, he stressed the relevance of the right to know the truth - essential in terms of punishment and reparation.
Ambassador Kessedjan went on to say that the draft Convention advances a detailed definition of the concept of "forced disappearance". Enforced disappearance is defined as a State crime. Yet State delegations pointed out that non-State groups were also responsible for disappearances although they sometimes act in cooperation with a State, eg. terrrorist groups, so a specific provision was drafted on this issue, without exonerating States of their responsibility to prevent disappearances and provide reparation for victims.
The draft Convention also sets out practical provisions on questions such as the establishment of a new Treaty Body (a Committee in charge of monitoring the implementation of the Convention), jurisprudence, applicable penalties, training of judges, etc...
Discussion
Council member States then took the floor to comment on the draft Convention. All permanent representatives expressed their gratitude to and esteem for Ambassador Kessedjan for his work and urged the Council to endorse the draft text of the Convention in order to submit it to the General Assembly for adoption at its next session. Some countries (Urugay, Brazil for GRULAC) showed their particular concern about adequate penal sanctions where children are victims of disappearances or when their parents are disappeared or when they are born while their mother is disappeared. Others (Russia, Algeria) expressed their satisfaction that the draft text concerned non-State actors and terrorist groups as well as States.
A statement by the International Committee of the Red Cross (ICRC) followed. The ICRC supports efforts to adopt the draft and stressed that forced disappearances constituted a denial of the right to family life. Once a person disappears, then it is often too late, and so preventive action must also take place. Non-State member statements followed.
Among NGO statements, the Permanent Assembly for Human Rights stressed the right of children and linked article 25 of the draft Convention on Forced Disappearance (on the right of children) to article 8 of the Convention on the Rights of the Child on the right to an identity and the duty of States to"preserve the child's identity, including nationality, name and family relations as recognized by law without unlawful interference".
Chair Kessedjan then took the floor again. He thanked speakers for the high quality of the discussion and welcomed the general consensus on the adoption of the draft text for the Convention. He ended the discussion by stressing that the Convention was the fruit of a "magnificient collaborative work". The meeting was adjourned at 2pm and will resume at 2:30pm.
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Further information
Article 25 of the draft Convention (on children)
1. Each State Party shall take the necessary measures to prevent and punish under its criminal law:
(a) The wrongful removal of children who are subjected to enforced disappearance, children whose father, mother or legal guardian is subjected to enforced disappearance or children born during the captivity of a mother subjected to enforced disappearance;
(b) The falsification, concealment or destruction of documents attesting to the true identity of the children referred to in subparagraph (a).
2. Each State Party shall take the necessary measures to search for and identify the children referred to in paragraph 1 (a) and to return them to their families of origin, in accordance with legal procedures and applicable international agreements.
3. States Parties shall assist one another in searching for, identifying and locating the children referred to in paragraph 1 (a).
4. Given the need to protect the best interests of the children referred to in paragraph 1 (a) and their right to preserve, or to have re-established, their identity, including their nationality, name and family relations as recognized by law, States Parties which recognize a system of adoption or other form of placement of children shall have legal procedures in place to review the adoption or placement procedure, and, where appropriate, to annul any adoption or placement of children that stemmed from an enforced disappearance.
5. In all cases, and in particular in all matters relating to this article, the best interests of the child shall be a primary consideration, and a child who is capable of forming his or her own views shall have the right to express those views freely, the views of the child being given due weight in accordance with the age and maturity of the child.
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Consideration of the report of the Working Group on a draft UN Declaration on the Rights of Indigenous Peoples (2:30-6pm)
At 2:30pm, discussions resumed with session 17 and the consideration of the report of the open-ended intersessional Working Group on a draft United Nations declaration on the rights of indigenous peoples.
Mr Luis-Enrique Chavez, chairperson of the Working Group, presented Council members with the report of the 11th session of the Working Group and a draft Declaration for their consideration. He stressed that negotiations had been lengthy and complex, and that no consensus had been reached within the Working Group on the draft proposed today. Annex 1 of the report, he said, makes it possible for interested individuals to understand how discussions have evolved and which questions are still pending.
Points where consensus could not be reached were mainly self determination (seen as a threat to territorial integrity by some States), the question of redress, and the question of natural resources. These issues should be discussed today so that conflicts will not arise in the implementation of the Declaration.
Mr Chavez was keen to add that the fact that the proposal was not subject of a consensus should not prevent Council members from giving their views on it today. It is not the result everybody was wishing for but in his view it is the best proposal one could hope for at this stage. So it is a first step that needs to be consolidated. Mr Chavez asked Council members not to neglect this opportunity.
Discussion
Permanent representatives of the following countries then expressed their views on the draft Declaration Mexico, Canada, Brazil, China, Russia, Austria/EU, Guatemala, South Africa, Japan, Philippines, Algeria/African Group, Cameroon, France, Finland/Nordic countries, Uruguay, Ecuador, Cuba, India, Bangladesh, Peru, Australian (for Australia, New Zealand and the US), Spain, Congo, Panama, Bolivia, Chile.
Most delegations welcomed the report of the 11th session of the Working Group and while expressing their belief in the necessity for such an instrument, deplored the lack of consensus on the draft Declaration.
Some delegations which expressed their support for the draft Declaration called other delegations to show a spirit of collaboration to allow the finalisation of a Declaration which has been in the process of being drafted for over a decade.
Other delegations (Canada, Australia, New Zealand and the US among others) urged the Council not to adopt the draft text as it is confusing and contradictory and would set a bad precedent for the newly established Council's practice. States need more time to reach a consensus.
NGO statements followed (see order of the day) and most of them expressed disappointment at their delegations' (and Canada's) wish to postpone adoption and prolong negotiations. They explained that the current draft was the result of lengthy and comprehensive negotiations, that States opposing its adoption were among those who were still violating the rights of indigenous people, that reopening discussions on process and substance would not lead to greater consensus but instead undermine this new human rights instrument. They urged the Council to give serious consideration to the adoption of the draft Declaration.
Other NGOs suggested a small group of facilitators could be appointed to help reach a consensus as there is no need for yet another international human rights instrument that is ignored and/or not ratified by most governments.
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This update has been produced by CRIN, in collaboration with the NGO Group for the Convention on the Rights of the Child, Subgroup for the Commission on Human Rights. To subscribe, unsubscribe or view archives, visit http://www.crin.org/email. Further information about the 1st session of the Human Rights Council are available at http://www.crin.org/CHR
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