New Ideas, old snags

The SG’s speech is yet to sink in, but some early indications have emerged

THE second week of the annual sessions of the Commission on Human Rights (CHR) is, of course, when things, positions and 'flexibilities' fall into place, and the current session is no different, the SG's radical speech notwithstanding. Even as Mr. Annan's suggestions are referred "back to capital" and others, including HRF take time out to consider the recommendations, the CHR slides into a familiar pattern.  

Last week, the CHR was treated to a diet of debates that are getting more insipid by the day - although India did try to inject some innovative language on engagement and marriages in its annual Item 9 bout with Pakistan. No matter that at the CHR, both countries have a strong marriage of inconvenience going when it comes to all non-Kashmir issues. 

And Zimbabwe of course outdid itself, using language that HRF, a family paper, would not dare reproduce.

Attempts have also been made by the usual suspects to, no doubt, further their contribution to the work of the CHR. The Asian Group, for one, has been up to its old tricks already, circulating a paper that proposes substantive changes to the work of the Special Procedures, even though the inter-sessional period can only involve discussions on procedure as the resolution on Special Procedures is a biennial one (see story in this issue: ‘Too special to be ignored?’). 

On Nepal, the flurry of activity is misleading. Little can be surmised until India speaks, and so far, it has chosen to stay quiet. The coming week, however, is expected to make things clearer. 

In the outrage over Nepal, however, it must not be forgotten that there are other states, small enough so that they don't even bother taking seats at the CHR (anyone ever looked for the Maldives, or seen a Laotian representative around?), that bear down on their citizens, and which need as much international attention.  

The point made by Mr. Ramos-Horta during the High Level Segment about a possible relocation of some UN agencies to developing countries was well taken, in the light of the scarcity of resources faced by small countries, activists and victims. In the case of the countries mentioned above, however, their absence at the CHR is not merely a problem of resources. (see story in HRF issue dated 21-28 March 2005 – ‘CERD’s solitary voice, UN’s deaf ears’). No, the Republic of the Maldives and the Lao PDR stay away because they have no interest in human rights. And they can afford to do so because nobody calls them to account. (see story in this issue: ‘Look who’s putting up a show’)  

An initial indication to the likely reactions to the Secretary-General's recent speech can be had from an informal consultation called by the Brazilian delegation to discuss the specific recommendation by the High Level Panel. This concerned a possible annual report on human rights by the Office of the High Commissioner for Human Rights. (see story in this issue: ‘Dead on arrival’). 

Finally, we welcome Belarus to the esteemed club of human rights defenders that is the LMG (see ‘A Perfect Fit’ in this issue).   

A Perfect Fit

Dead on Arrival

An informal discussion on the first High Level Panel recommendation fails to take off

AMONGST the recommendations of the High Level Panel on UN Reform for the Commission on Human Rights was a vague suggestion that the Office of the High Commissioner for Human Rights might compile an Annual Global Human Rights Report. The motivation for such an undertaking, and the contribution that it might make, was undisclosed, leaving the idea merely open for consideration. 

Human Rights Features, in its issue dated 14-20 March 2005, suggested that this might not necessarily be a bad idea, giving a certain authority and cohesion to the deliberations of the special procedures, treaty monitoring bodies, and so forth. This however, would depend on the Office following such a formula; namely, condensing the materials that already exist and presenting them in a more accessible form to the general public. 

This would avoid drawing into the politicisation of the OHCHR, which is not mandated to condemn particular countries in its role as secretariat to the CHR. It would also allay legitimate concerns that such an exercise would eat into the OHCHR's already impossibly tight budget in a manner not commensurate with its contribution.     

The very early informal consultations by Brazil on the operational paragraphs of a draft resolution should therefore be welcomed at the very least as a swift positive response to the High Level Panel's recommendations. It is a short and straightforward resolution that "requests the High Commissioner to submit to the 62nd session of the CHR (2006) a proposal containing complimentary ideas for the elaboration of a global report" (OP 2), in the eventuality, pursuant to this, that the CHR "decides to adopt an annual Global Report of Human Rights" (OP 1). At the first informal discussion, many raised the view the OP 2 would suffice, not binding the Office to having to compile a global report if it finds no value in the exercise.

 Whilst Brazil should be commended on the initiative, they let themselves down by not conveying in any real sense what they themselves foresaw as the additional value of a global report. Their non-paper on the resolution speaks of a "momentum" existing, and that other UN programs do the same, but it still doesn't stake a claim to a global report's worth. Their explanation that the increasing politicisation and selectivity of the CHR necessitates a Global Report doesn't make any obvious sense.

 And so the vultures descended to pick apart the first recommendation of the High Level Panel to be put to the test before the Commission. The African group were irate that they were not consulted in advance before having to belittle themselves before an audience of NGOs, and so they sulked en masse.  Norway more or less thought it was a waste of time. The Algerian delegate talked in circles about a Global Report politicising human rights, where "to politicise human rights is to devalue human rights". Clearly he has found himself in the wrong job. Egypt saw it as a potential "cut and paste" exercise that would be too difficult to deal with during the six-week session of the CHR. Had he got up early to read the Secretary General's proposals for reform, he might have known that there is a way to deal with that shortcoming.

 China claimed that there is "too much reporting". Australia said it was premature and unnecessary. But the prize for shooting the turkey went to India at the finale, whose voluble dignitary declared that this "problematic and controversial" subject would "inevitably" politicise the OHCHR. It is, apparently, "not wise" to pronounce on countries as we already have agenda item 9. Also, how could the staff of OHCHR be trusted to be fair and representative (aka the Cuban conspiracy)? In fact, whatever the High Level Panel thinks it has to say on the Commission, the dignitary expressed with what could only be perceived as restrained contempt, this idea would only "weaken the OHCHR" and "we should stay clear of this idea not only this year but all together."  In fact, all that appears to exist, he concluded with aplomb, is a consensus against a global report.  

 Well, despite the efforts of Brazil to only table an elaboration of the idea, this appears so. The High Level Panel's first recommendation to surface is dead on arrival. It is at times like this that Kofi Annan's proposals, released only hours before the Brazilian consultation last Monday, seem so appealing. Not only because it typifies the Commission's conservatism, but also because during the consultation delegates continued to refer to the Secretary General's forthcoming proposals.

One renowned NGO even referred to the report as being released on 30 March! If they are all that far behind the times, better they be put out to graze.

‘The Special Procedures are the reflection of the responsibilities of monitoring... [W]e fall silent and go to sleep after six weeks, but they [continue] working," said H.E. Dr. Makarim Wibisono, Chairman of the 61st Session of the Commission on Human Rights (CHR) in last week's interview with Human Rights Features. 

Together with the Office of the High Commissioner on Human Rights, the Special Procedures are the eyes, ears and hands of the Commission. Independent experts, Special Rapporteurs and Working Groups are endowed with the difficult task of promoting and protecting human rights. Through visits, reports, urgent appeals, investigations and recommendations they execute the mandates received by the Commission. 

Similar to the Broken Chair that is currently missing from its usual spot at the Place des Nations, the 61st session of the Commission on Human Rights was supposed to be an ‘off’ year for this issue since the resolution on Special Procedures was biennialized from the 56th CHR session onwards. Back then, the Asian bloc had argued that the work of the Commission had to be rationalised and an open ended inter-sessional working group on enhancing the effectiveness of special mechanisms eventually recommended abandoning an annual review of the question (E/CN.4/200/112). Ironically, in this 'off' year, the substantive aspects of the issue are being smuggled in through the back door by the same group that complains incessantly about the time and resources spent on certain issues. 

Last year the Czech delegation led the negotiations on the resolution entitled: "Human rights and special procedures". They managed to achieve agreement on expanding the scope of the earlier resolution on Thematic Procedures to include all the Special Procedures (E/CN.4/RES/2004/76). It turned out, as expected, to be an arduous undertaking, chiefly due to strong opposition by the LMG and Cuba. While claiming to favour the strengthening of the Special Procedures, these countries tried all means possible to weaken the very foundation of their mandates. Within the informal meetings on the Resolution the LMG and Cuba tried to twist the language, for instance, to not protect people cooperating with Special Procedures or to limit cooperation with civil society. This battle ended with the passing of the resolution with 18 abstentions, but no vote against. 

Meanwhile, inside room XVII, Special Rapporteurs were attacked by members of the CHR, with Spain reacting with outrage to the report of the Special Rapporteur on Torture, Theo van Boven, and Israel taking on Jean Ziegler, the Special Rapporteur on the right to food. All of this is part of a worrying ongoing tendency to weaken Special Procedures, and the newest attempt to move towards this goal is being made at the present session. 

The lack of consensus on last year's resolution appears to have given some countries within the Asian Group an excuse to make the next move. A paper has been circulated by the Asian Group for consultation among the regional groups in the months preceding the current session. The paper is allegedly intended to improve the effectiveness of special procedures. Coming from the very countries that demonstrated strong opposition during last year's informal meetings on the resolution, this seems implausible. 

The scope and content of this paper must be treated with caution. Building on the recommendations of 2000 and the Secretary General's report "Agenda for Further Change" (A/57/387) the paper contains some suggestions that might usefully seek to address the apparent lack of standardisation in the work of Special Procedures and the feeling in certain quarters that the Office of the High Commissioner on Human Rights is falling behind in the implementation of existing guidelines and recommendations issued by the Commission. 

Nonetheless these shortcomings do not explain why the recommendations in the Asian Group's paper go as far as demanding for a code of conduct for Special Procedures, which would curtail the mandate holders and would not allow them to carry out independent investigations. It also addresses issues such as the length and format of reports, issues that were already addressed in last year's resolution. On several other issues, such as cooperation with civil society or appointment procedure, this paper clearly duplicates, or rather, circumvents what was already decided in last year's resolution. 

The other regional groups, however, have clearly not been amused by what appears to be the Asian Group's attempt to push this through as an Asian initiative and have let it be known that while the strengthening of the Special Procedures can continue in the inter-sessional period, there should be no formal, substantive moves during this year's session. 

Last Monday the Czech delegation, being the author of last year's resolution called for an open-ended meeting, in order to clarify the state of play. The representatives of the Asian Group, smartly cornered by the Czech, found themselves compelled to inform everyone in the room of their intentions, NGOs included. Postponing an in-depth briefing to some time after internal Asian Group consultations, China and India disclosed that they intend to produce a document, which, after passing through the Extended Bureau, could be adopted during this session of the Commission under Agenda Item 3. 

The representatives of the Asian Group claimed they were seeking a broad consensus and believed the involvement of all stakeholders to be crucial. Then, they turned around and indicated their evident displeasure at the presence of NGOs in the meeting room, and refused to recognise civil society as a stakeholder. This, furthermore, blatantly contradicts last year's resolution on Special Procedures, which, in article 5, invites civil society to actively cooperate and support Special Procedures. They also claimed they were not aiming at duplicating the resolution adopted during the 60th session. 

Three regional groups, the Western Group, the Eastern Group and GRULAC have responded prior to the 61st Session of the CHR to the Asian Group's paper. During Monday's meeting their representatives reiterated their objections. By the end of the meeting, agreement was reached on the continuation of work on enhancing of special procedures under certain conditions. It was agreed that what had already been achieved through last year's resolution and prior to that, should not be renegotiated. And that there should not be any substantive decision during the current session of the CHR; only a decision on how to proceed with inter-sessional work could be considered. Such work would have to be inclusive of all stakeholders: mainly states, mandate holders, OHCHR and civil society. Inputs should be considered by all regional groups on equal footing. Finally, it was stated that there should not be a time limit for this process. 

The political manoeuvre, which is being orchestrated this year by the Asian Group, brings to mind a draft resolution circulated in 1997 on Rationalisation of the Work of the Special Procedures which ended up being adopted as a decision a year later (1998/122) and created the open ended inter-sessional working group on enhancing the effectiveness of special mechanisms. Much of the damage to the work of the Commission and the Sub-Commission was the result of this underhand initiative. 

This year, the speculations of some members of the Asian Group, however, do not seem as accurate as on previous occasions. A week has passed now since the promise of disclosing the details of a draft decision by the Asian Group and it is possible that the Asian bloc is finding agreement within the bloc more difficult to achieve than expected. That should have been the easy part, since it seems very unlikely that any decision could pass by consensus if the remaining groups' suggestions were to be taken on board. Yet, there appears to be a willingness to find a common position. 

The Asian Group may have hoped that their latest attempt at bringing significant substantive changes to the work of the Special Procedures had a chance this year with an Asian Chair. However, the Chair, from all indications so far, has been fair and firm as he carries out his task, and it is reasonable to expect that he will continue in the same manner. Also, as the Russian delegate pointed out, the Bureau, whether Expanded or limited, has no competence to make inter-sessional decisions. 

As Week 3 begins, the radars of those interested in conserving the strength and capacity of the Special Procedures must be set on high alert. If the Special Procedures are weakened, there is little sense in reviewing or renewing mandates. A chair is not useful with a broken leg; to make it useful, the CHR needs to fix the broken leg, not break the remaining three!.

That mythological divide

The Working Group on the elaboration of an Optional Protocol to the ICESCR is being thwarted by both sides of the ICCPR-ICESCR ‘divide’, including those States that routinely hold forth on the importance of ESCRs

Gareth Sweeney

Her Excellency Louise Arbour introduced herself to the Commission on Human Rights (CHR) on the opening day by pointing to the pressing need to redress the schism that exists between supposedly indivisible rights as central to her mission as High Commissioner. "Struck by the continued way in which we view some rights as though they occupy discrete compartments", Arbour stated that "there can be no cause today to question the equal status of economic, social and cultural rights." On this basis, she expressed to the High Level Segment her wish that agreement can soon be reached to allow the entry into force of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR), "giving rise to a legal process that would allow individuals to bring their claims before an international forum in those situations where national recourse has been found wanting." 

And yet, despite the fact, as Ms. Arbour rightfully asserted, that the basis for adopting such an optional protocol has "time and again" been affirmed, the sessions of the open-ended Working Group to consider options regarding the elaboration of an optional protocol to the ICESCR continue to provide the most contemporary examples of the legacy of divisiveness that has hindered international human rights law since the separation of rights in the drafting of the ICCPR and the ICESCR. Despite the unequivocal and final assertion by the international community as a whole in 1993 that all rights are "universal, indivisible and interdependent and interrelated", the activities of influential states would appear to render this sentiment to be shallow and rhetorical. 

Pursuant to the World Conference on Human Rights, the Committee on Economic, Social and Cultural Rights (CESCR) discussed and issued reports concerning its work on a draft optional protocol and issued a draft for consideration by the CHR in 1997. The protocol mandates the CESCR with the competence to receive individual complaints and establishes a communications procedure in accordance with the mandates of other treaty monitoring bodies. 

Rather than adopt the optional protocol, the CHR spent the following three years receiving communications from States, indicating a preponderant reticence, or blank dismissal, by many states to endorse the idea. The appointment of an independent expert for two years, followed by a Working Group whose mandate is assured until 2006, have at this stage provided exhaustive examinations of all issues relevant to the creation of an optional protocol. These have included, time and again, the justiciability of ESCRs, normative understandings of "progressive realization" and the obligations to "respect, protect and fulfill" ESCRs, the debates surrounding the availability of resources, allaying fears of an impact on national executive decision making, the complementarity of such a protocol with other treaty body mechanisms, the applicability of the Committee's 1997 draft protocol, and so forth. 

The exercise here is not to re-iterate what is widely known about the applicability of an optional protocol and its various components. These are all, as mentioned, very well settled points, as can be discerned from: the general comments of the Committee and their contributions to the deliberations of the Working Group; comparative studies of national legislations; the protections afforded by other regional bodies such as the African Charter, European Social Charter, and the San Salvador Protocol; as well as the protections afforded by other (although, it should be emphasized, different) international monitoring bodies such as UNESCO and the ILO. Rather, the objective here is to illustrate how certain states are determined to resist the elaboration of an optional protocol, in spite of the above, for whatever reprehensible motives.  

Tail Chasing in 2005 

Despite the exhaustion of creative means to scupper progress, the same bulwarks of obstinacy keep appearing. Ironically, the two sides of the relativist divide seem to work in tandem on thwarting progress. The United States, whose high moral ground on civil and political rights has lost credibility in recent years, also makes no secret of its reticence towards the very concept of economic and social rights, even as core minimum standards. On the other hand, those who have traditionally trumpeted the cause of ESCRs as a means of deflecting from, or indeed as a means of legitimizing, their abuse of civil and political rights, have done so in the knowledge that ESCRs demand less scrutiny in the international arena. It appears that the last thing they wish for is an individual complaints mechanism under international law. In this instance, opposites attract.      

A good opening salvo should be fired at Italy who, in a note verbale communicated to the Secretary-General pursuant to resolution 2003/18, declared that "ESCRs are only a declaration of intent that carry moral and political weight but do not constitute direct legal obligations for the State party." This did not prevent the Italians, however, from co-sponsoring resolution 2004/29 to extend the mandate of the Working Group for a further two years. This in itself is indicative of the malaise. And on the other hand we have Cuba, who responded that "the establishment of a complaint mechanism under ICESCR is not only viable, but also necessary in order to realize the full enjoyment of all human rights." Perhaps Cuba might consider signing the ICESCR before it feels it has the right to preach to others. 

And it is the debates that surrounded the above-mentioned resolution 2004/29 of last year that provide the best illustration of certain States' positions. Its eventual adoption by vote, after seven votes on attempted amendments, was preceded by commentaries from an alliance not often visible at the CHR. The US openly rejected an optional protocol, expressing its concern that the language describing such rights as legal entitlements threatened sovereignty and gave rise to an "incorrect view". China, yes, China, reiterated the same points as the US. And, perhaps even more remarkably, India, a country that is often trumpeted as a State where some ESCRs can be justiciable by way of the Supreme Court's correlating of constitutional directive principles with the right to life, added that it is "premature" to consider developing an optional protocol as there is no clear standard of measuring progressive realization, and therefore monitoring State compliance would be virtually impossible. This is pure doublespeak. 

Add to the uneasy alliance Pakistan and Saudi Arabia, who moved in the voting process to include the importance of international co-operation, an amendment defeated by only one vote. And then Australia, who most cynically requested that the CHR "take note of" rather than "welcome" the report of the Working Group, a move that was supported only by the US, which speaks volumes. The latter, most memorably, then moved to discontinue the mandate of the Working Group, and was supported by Australia (a welfare state, it should be added), with Indonesia (a supposed champion of ESCRs) and the Russian Federation abstaining. To this hall of shame can be added the following, who voted in favour of Pakistan's request that a member of the CESCR not be invited to the Working Groups next session: Australia, Bhutan, India, Nepal, Pakistan, Saudi Arabia, Sierra Leone, Sri Lanka and the US. Add the peculiar abstentions of Bahrain and Qatar to the final vote alongside Australia, the US and Saudi Arabia, and such a consortium at the Commission is a rare sight indeed.        

And so to the most recent meeting of the Working Group in January 2005. Here, once again, all relevant experts comforted with saintly patience those states that maintain extreme difficulty with grasping the applicability of an optional protocol. Canada proposed expanding the mandate of the Special Rapporteur on the right to education to consider individual complaints as an alternative to an optional protocol. France, Germany and Greece proposed limiting the scope to "serious violations" whilst Russia advocated an "a la carte" approach. Saudi Arabia challenged the legal status of the CESCR as a treaty monitoring body mandated by ECOSOC, a novel but fruitless attempt at obfuscation. Japan, Canada and Poland joined the US in remaining unconvinced as to the merits of an optional protocol, whilst the UK remained skeptical. Thus Romania, the US' ally for the right to democracy, requested a paper on how an optional protocol would have a positive impact on the implementation of the ICESCR. Other delegations requested a study to address, among other aspects, the "relationship between the optional protocol and existing mechanisms", the nature of ESCRs, "particularly in view of the risk of interfering in domestic political discussions about resource allocation", "the relationship between an optional protocol and existing mechanisms" and "the option of having no optional protocol." And so the endless cycle continues.    

Portugal has this year tabled an uncontroversial procedural resolution endorsing the progress of the Working Group and requesting it to report once more to the CHR at the 62nd session. Whilst Portugal should be commended for having initiated the movement toward an optional protocol, the Commission does not need a working group to consider the elaboration of a draft protocol; it does not even need a working group to elaborate a draft protocol. This was undertaken eight years ago and is generally sufficient, subject to reasonable amendments as suggested by the Office of Legal Counsel and those whose motivation is a workable protocol. Instead the Commission has managed to stall progress by wasting time and resources on independent experts and working groups for what will be, at the very least, nine years, only to find itself, at the very most, back where it began in 1997.  

Instead, belligerent States, with no hint of embarrassment, continue to feign incomprehension over rudimentary and well-settled points of law during the deliberations of the Working Group. It is a wonder that the members of the Working Group have any hair left. And these are the same Commission member states that publicly or otherwise lament the decline of the Commission as a body of repute. As the cynical prevarication over the optional protocol illustrates, this is no one's fault but their own.

State action key in fight against hunger

Eradicating hunger is not just about finding the resources, as Jean Ziegler points out in his report to the CHR

EVER more eloquent, bold, and relevant, Jean Ziegler, the Special Rapporteur on the Right to Food, has once again made an invaluable contribution to our understanding of economic and social rights with his annual report to the Commission on Human Rights. Expanding General Comment No. 12 (1999) of the Committee on Economic, Social, and Cultural Rights, Ziegler defines the right to food as "the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which consumer belongs, and which ensures a physical and mental, individual and collective, fulfilling and dignified life free of fear." By all accounts, the incidence of hunger has increased steadily in the past decade despite of glossy policy statements in international forums. Ziegler concludes that "[t]his makes a mockery of the promises made by Governments at the World Food Summits held in 1996 and 2002, as well as the promises contained in the Millennium Development Goals." 

Widening inequalities and falling amounts of aid have left the poorest more vulnerable in spite of global economic growth. Concise and precise, Ziegler's latest installment covers the state of the enjoyment of the right to food and the development of new conceptual and regulatory tools by which to achieve it. In particular, it provides an overview of the issues relating to the development of international voluntary guidelines regarding the right to food, and to extraterritorial obligations of states in terms of this right. 

Searching for accountability 

If there is a shortage of funds for poor countries, there is no shortage of ideas and plans on how to assist them, including the proposal of the Governments of Brazil and France to create a fund to fight hunger and poverty worldwide, and the international voluntary guidelines on the right to food. The Special Rapporteur draws attention to the fact that the Voluntary guidelines on the right to food promote the coordination of domestic and foreign policies in the perspective of seeing the realization of the right to food. The new magic bullets proposed by international donors, however, do not secure an integrated rights-based foreign policy. 

The Landau report to the French President, which underpinned the French position to the quadripartite summit on Action against hunger and poverty in September 2004, explored new ways to finance international aid through new international financial contributions mechanisms or international taxation. The report starts by identifying the failures of development cooperation from insufficient resources, high negotiation costs, inadequacy and inappropriateness in form, and high volatility. Rather than propose ways to reform international aid and increase its accountability, the Landau report searches for a resource stream that is both concessional and predictable. In fact, they secure funds, not their disbursement. None of the proposed international financing mechanisms solves the problem of the low effectiveness of current foreign aid. 

By removing development assistance financing from the budgets of donor countries, they only, in effect, diminish accountability mechanisms both in donor and in recipient countries. “Yet”, the Special Rapporteur writes, “eradicating hunger and poverty is not only a question of finding resources. It is also a question of challenging structural injustices and inequities of power which allow human rights abuses to take place.” Bypassing the State in donor and recipient countries weakens in the long run the capacity of public action to build equitable social relations. In the end, the fulfillment of the right to food will be fostered if international cooperation mechanisms work toward strengthening the States' responsiveness and public scrutiny in the North and the South. In this respect, the principles of good donorship are a necessary complement to implementing good governance programs and fighting corruption in developing countries. The elements of good donorship identified by the London-based Overseas Development Institute (ODI) include country leadership and ownership, capacity-building for the long-term, harmonization and simplification, transparency and information sharing, predictability, and subsidiarity. 

Fine-tuning international responsibility 

The Special Rapporteur lays out the contours of extraterritorial obligations in respect to the right to food. It includes an obligation to respect the right to food by curtailing policies such as embargoes, subsidies, or structural adjustment programs, which undermine livelihoods in developing countries. There is also an extraterritorial obligation to protect the right to food through the regulation of corporations and non-state actors under the State's jurisdictions with a view towards protecting inhabitants in other countries. 

Finally, Governments have an obligation to support the realization of the right to food in poorer countries including through the facilitation of the realization of this right and the provision of assistance in accordance with States' human rights obligations. However, even with this minimal requirement, a number of problems arise in the context where the Government concerned by violations of the right to food is actually the source of these violations or when it is unwilling to acknowledge them. 

First, the fulfillment of extraterritorial obligations in terms of the right to food can be seriously compromised by the unwillingness of the Government where violations occur to acknowledge them. This has been the case in 2004 in Zimbabwe, where President Mugabe has denied food shortages and forecasted bumper harvests. Indeed, the Washington Post reported in July 2004, that food supplies remained idle in warehouses. UN agencies, the Post reported, were scaling back their programs and shifted to targeted programs at schools, orphanages, and medical clinics. The Government of Zimbabwe has also imposed tighter restrictions on NGOs, including international agencies such as Save the Children, World Vision and Care, accused of interfering with national affairs and supporting the opposition. Only this month, President Mugabe has acknowledged during a political rally the fact that the country would face food shortages. We are left to wonder if it only takes this admission for the international community to meet its incipient obligation to protect the right to food.

Second, the provision of assistance could be possible only in violation of humanitarian principles. In North Korea, international donors have continued to provide food aid based on needs in spite of the lack of humanitarian space. In a testimony to Congress in February 2003, the USAID Administrator, Andrew Natsios, who incidentally wrote a book on the North Korean famine, noted that "after eight years of international assistance, the Government of North Korea has done little to reform the destructive policies that created one of the worst famines in the late 20th century. At the same time, the humanitarian community in North Korea must still operate in an environment that violates almost every principle upon which humanitarian assistance is based. In fact, out of all of the countries in which WFP operates, North Korea stands alone in its wholesale refusal to adhere to internationally recognized humanitarian standards." In September 1998, Doctors Without Borders (MSF) pulled out of North Korea because the Government of North Korea was manipulating humanitarian aid. 

In March 2000, Action Against Hunger (ACF) in a report explaining its own decision to withdraw from North Korea stated: "By confining humanitarian organizations to the support of (…) state structures that we know are not representative of the real situation of malnutrition in the country the authorities are deliberately depriving hundreds of thousands of truly needy Koreans of assistance. As a consequence any humanitarian assistance provided is only helping the populations which the regime has chosen to favour and support, and which are certainly not the most deprived." 

Since donor States act through UN and NGO partners in situations of complex emergencies, the preliminary criterion to establish the fulfillment of national and extraterritorial obligations in relation to the right to food should be the existence of a humanitarian space, which does not compromise the humanitarian principles of impartiality, neutrality and independence of relief aid. 

Seeing the 'fourth world' 

To conclude, we must stand cautioned against technical solutions that weaken the State and accountability mechanisms, and argued that extraterritorial obligations in relation to the right to food have to be grounded in terms of humanitarian principles, with a view towards enlisting States and civil society in the North and the South, and promoting a bottom-up approach to the fulfillment of the right to food. A bottom-up strategy relies on the mobilization of a global constituency for the right to food that would not only find famines but also hunger. Raising the profile of the right to food, involves sensitizing public opinion in the richest countries to the problem of hunger through increased awareness of hunger at home. 

The Special Rapporteur provides a comprehensive assessment of threats to the right to food ranging from Ethiopia to North Korea. The Special Rapporteur's interest in US foreign policy could find an interesting outlet in concretely addressing food insecurity in the US itself. Indeed, Ziegler has eschewed the problem of hunger in industrialized economies. It is astonishing, however, to find that the wealthiest country in the world has not eradicated hunger. The US Department of Agriculture estimates that about 12.6 million people, representing 11.2 percent of the American population, suffered from hunger in 2003. According to UNICEF's Innocenti Research Centre, the USA is, alongside Mexico, the worst performer in terms of child poverty among OECD countries in 2005. Looking carefully at hunger even in the richest places is an imperative to advance the right to food and promote its universal application. 

There is no question that violations of the right to food in developing countries affect a larger number of people and affect them more deeply than in industrialized countries. The world has relied for too long, however, on pictures of emaciated children in Africa to mobilize international assistance. The most effective way to build a constituency for the right to food that will support international cooperation and more equitable social relations is to foster awareness of hunger by exposing the 'fourth world' in the richest countries as well.

SAPs: Limiting options for development

For over two decades human rights advocates and development practitioners have been concerned with the negative consequences of the Structural Adjustment Programmes (SAPs) initiated by the international financial institutions (IFIs) despite the assurances that the economic growth facilitated by these SAPs would lead to an enabling environment for human rights. The economic benefits of these programmes have not been conclusively shown while the negative affects on the human rights of the poor and marginalized within nations adopting SAPs, particularly concerning economic, social and cultural rights, have been well documented. 

This article will discuss the failure of the international community to act on the repeated counsel of human rights practitioners and development experts within the United Nations system. Despite evidence of the violation of international human rights law resulting from SAPs, they appear to have been accepted as inevitable and part of the global development process. The UN Commission on Human Rights now focuses on discussing the human rights consequences of the surrounding harmful results of such policy, rather than criticizing the SAPs themselves. These policies have undermined the legitimacy of the IFIs and the international economic order in general within the developing world. By associating themselves with such policy, the human rights mechanisms within the UN risk the same fate. 

The prevalent development paradigm 

The "free market" global trade system based on deregulation, liberalisation and competitiveness has been presented as the only option for development. This proposition is based on economic arguments that hinge on the success of the global trade system and its ability to enhance human rights through economic growth. It is avowed that free trade is essential for the enjoyment of human rights. This system promotes self-interest, which raises the standard of living for all and should provide the funds necessary for the realization of human rights. It is assumed that this growth leads directly to improvements in the enjoyment of Economic, Social and Cultural Rights (ESCRs). This neo-liberal argument claims that human rights are provided for by macroeconomic growth. 

The details of the economic failure of SAPs are beyond the scope of this article, which focuses on human rights law and the role of the Commission, but are sufficiently convincing. Despite these failures, the IFIs relentlessly pursue this agenda. SAPs aimed at the economic sector have become a system for the neo-liberal restructuring of the political and social organization of developing societies. The IFIs insist that corruption is the reason for the failure of SAPs and that only through good governance could an enabling environment for economic activity, and therefore human rights, be realized. This has allowed the IFIs to rapidly expand into all aspects of developing world governance.

 Initially the IFIs were reluctant to be drawn into the debate on human rights. Most reforms to SAPs retain to the core of the old policy despite the warnings from the UN, civil society and human rights activists. The preference remains for the SAPs applied in the 1980s, ameliorated through poverty-alleviation programs. The failures of the SAPs led to a deepening of the economic conditionality agenda. However, due to the rise of human rights discourse within the international community, human rights issues have been forced on to the agenda of the IFIs. However, much of this programme concerning human rights is rhetorical, showing more concern for investors rights by concentrating on predictability and stability, Western liberal ideologies are specifically forwarded by the IFIs through SAPs as they provide stable and reliable investment opportunities. In doing so, the IFIs directly influence human rights law policy making in the developing world. The IFIs still take a purely economic approach to governance and development. This has resulted in contradictory policies concerning human rights. 

The IFIs have implemented "adjustment with a human face" incorporating social protection designed to shield the poor from SAPS. These programs are not sufficient to counter the negative consequences of SAPs and are often viewed as appeasing the poor only. The Heavily Indebted Poor Countries Initiative (HIPC) was designed to address the fact that these countries are unable to implement structural adjustment as such policy has exacerbated economic problems and made it more difficult to achieve human rights realization. The goal of the HIPC is ostensibly debt relief and poverty reduction. However, in order to qualify, the country must conform to a SAP. This undermines the initiative, which has been touted as an exit from debt promoting growth and the release resources for social expenditure. The HIPC is limited and can only work if the causes of socio-economic inequality are addressed by debtor countries and the international community. This requires a critical look at the system of development based on SAPs that has brought about and exacerbated human rights problems in developing nations. 

The international community’s response 

The disappointing fact remains that this is all common knowledge within human rights development discourse. The United Nations human rights mechanisms have repeatedly expressed concern at the human rights aspects of SAPs and the international economic order that promotes such initiatives. The consequences of SAPS for human rights were a continuous theme of the late 1990s in all charter based UN agencies. In fact, as early as 1992 the Commission was informed that despite positive changes in SAPS, the structural adjustment process continues to have a daunting effect on human rights and upon the capacity of nations to fulfill and respect human rights. The report cited the impact of the adjustment process on national sovereignty; the issue of participation; the integration; the lack of viable alternatives; the lack of protection for marginalized groups and of discussion concerning the human rights affects of SAPS as top priorities concerning human rights. Regrettably, all of these concerns remain valid 13 years later. 

The benefits of a globalized economy cannot be reaped through rapid liberalization alone. To make the most of growth there has to be human rights policy. Governments have to implement policies for social development and protection, poverty eradication, and income distribution. This remains difficult while attempting to conform to a SAP with meager resources. These concerns have not been addressed appropriately in human rights terms and the international community remains mired in precisely the same debate, impotent in the face of a dominant economic system. The Commission, that once mandated its organs to argue strongly against the SAP regime, now fails to encourage dissent. It is outrageous that these issues remain despite the endeavors of practitioners, activists and academics to address them. 

The momentum gained in the 1990s and early 2000s by the human rights bodies of the UN in criticizing SAPS has been lost. The last year of debate has been overshadowed by the debt issue, which admittedly has drastic human rights consequences. However, most of these debts were accumulated under the auspices of the IFIs' structural adjustment programs themselves. By concentrating on the human rights consequences of debts, which occur as a result of a development system bent on economic growth at all costs, those in the UN human rights community concerned with development are missing the point completely. A development system that puts economic concerns such as liberalization, deregulation and privatization above a human rights-based approach is permanently incongruent with the protection, promotion and fulfillment of all human rights interdependently. 

Conclusion: The SAPs debate in 2005 

The Human Rights Commission no longer seems concerned with taking action to prevent the well documented abuses of ESCR associated with SAPs. Administrative and logistical concerns have hampered the efforts as well as ill-defined mandates and organization of the independent expert's functions. Moreover, operational delays are unacceptable considering the magnitude of the violations in question. CHR  resolutions no longer repeat the same points, reaffirming the human rights dimensions of SAPS and have no recommendations with little guidance for action concerning the IFIs. 

In fact, the latest report of the Independent Expert on the effects of structural adjustment policies on the enjoyment of human rights (E/CN.4/2005/42) insists that all problems with SAPS have been solved! Perhaps this reflects the impotence of the Commission regarding the international community, the IFIs and its development policy. Moreover, by adding foreign debt to this mandate in 2002, the task becomes more convoluted. These are two enormous issues in terms of the ESCR of millions of people and should be prioritized separately and with a higher level of importance. These problems are apparent in the reports of 2004 and 2005 (see box). 

Poverty, marginalization, and the lack of legitimacy remain the most daunting hurdles within international development discourse. Many lessons can be learned from ESCRs, the Right to Development and a Rights-Based Approach. However, none of these systems can be utilized while the current approach to structural adjustment is entrenched as absolute. This approach must be significantly altered. The Human Rights Commission is looked upon as a legitimating source for human rights-based critic of the international system of development. Six years ago, organs of the Commission's human rights mechanisms called for openness in the policy making of the IFIs to fundamental transformation of unjust economic and political power structures despite resistance from dominant social and political groups within the global economy. Where are those voices in 2005? 

- Daniel Aguirre is a PhD fellow at the Irish Centre for Human Rights.

Reform bid threatens judicial independence

A new bill permits the interference of the executive in the promotion and discipline of the judiciary’s members

Anna Schenk With inputs from Annii Turner

The constitutional warranty of the independence of the judiciary in Italy is under threat by judicial reforms proposed by a bill recently introduced and ratified by Prime Minister Silvio Berlusconi's government. The bill permits the interference of the executive into the promotion and discipline of the judiciary's members while simultaneously weakening the power of the independent, constitutionally-established body currently regulating Italian magistrates. There have been both domestic and international objections to the bill, with the most recently publicised that of President Carlo Azeglio Ciampi's refusal to ratify the reforms. 

Outline and anticipated ramifications of the proposed reforms 

The primary argument of opponents to the proposed reforms relate to a concern that the independence of the judiciary will be undermined by statutorily-endorsed executive interference. Pursuant to Article 104, the Italian judiciary has a constitutionally-entrenched right to be constituted as "an autonomous and independent organ" that "is not subject to any other power of the State." This aligns with Article 1 of the United Nation's Basic Principles on the Independence of the Judiciary, which states that the "independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or law of the country." The reforms proposed by Prime Minister Berlusconi's government fail to uphold this element of judicial independence.

In a United Nations press release dated 17 December 2004, Leandro Despouy, the Special Rapporteur on the independence of judges and lawyers of the United Nations Human Rights Commission, outlined objections against the proposed reforms. These fundamental criticisms have been adopted as a basis of analysis for the purpose of this article. 

Interference of the Executive 

Pursuant to the proposed bill, the Minister of Justice will affect the Chief Prosecutor's nomination. The reforms propose a system of case management whereby both case delegation and case withdrawal to the Deputy-Prosecutors is regulated by the Chief Prosecutor. This hierarchical structure, ultimately presided over by the executive, displays a disregard for the separation of powers doctrine and leaves the system wide open for exploitation by the Executive. The Special Rapporteur believed it would have the effect of "reduc[ing] the autonomy of Deputy-Prosecutors and pav[ing] the way for possible Government nterference (sic)." 

Weakening of the power of the CSM 

Currently the judiciary is self-governed by a constitutionally-mandated and independent Higher Council of the Judiciary (Consiglio Superiore della Magistratura - the CSM). Under the reforms, the role and powers of the CSM will be weakened. Pursuant to Article 105 of the Constitution, the CSM currently attends to the judges' recruitment, assignments, transfers, promotions and disciplining. If the reform is successful, both the promotion and disciplining of magistrates will be affected. The CSM will lose "part of its constitutional competence over the promotion of magistrates" which the Special Rapporteur believes introduces a risk that proposed qualification exams "may be used as a means for unduly interfering with magistrates' career". The situation will be exacerbated by the role that the Minister of Justice is to be given in disciplinary proceedings over members of the judiciary. This exertion of political influence over the judiciary is a violation of the fundamental constitutional requirement of judicial independence. 

Increase of judicial backlog 

The method of the proposed reintroduction of exams may have a potentially "negative impact on an already serious judicial backlog." According to a report published 11 December 2001 by the Italian Ministry of Justice, more than 4,700,000 cases were pending and about 90 percent of crimes committed in Italy were going unpunished. Article 6 of the European Convention on Human Rights states that "everyone is entitled to a fair and public hearing within a reasonable time" and Italy is notorious for being the state that has received the largest number of sentences from the European Court of Human Rights for the violation of this article. Arguably any increase in the number of bureaucratic procedural requirements for admission into practice will be of great detriment to Italy's existing inefficient judicial system. 

Ignoring the need for autonomous investigating magistrates 

Currently, "Italy is the only democracy in which the same corps of independent career magistrates performs both judicial and prosecuting functions." Under this system and the supervision of the CSM, a practitioner could "switch from the function of an attorney to that of a judge and vice versa." The proposed reforms establish a system whereby practitioners must choose whether to become a prosecutor or judge within five years of qualifying. It is suggested by The Economist that this "is designed to reduce the chances of collusion in trials between participants who should be entirely independent of each other." Two arguments have been formulated against the proposed division; defence lawyers claim there should be "an even sharper break between prosecutors and judges" while others believe that in a country like Italy, "the need for strong, autonomous investigating magistrates exceeds the risk of occasional abuses." 

Objections to the proposed reforms 

On 16 December 2004, the bill was vetoed by President Carlo Azeglio Ciampi, who stated that parts of the reform were "blatantly unconstitutional". In a United Nations press release, Leandro Despouy, the Special Rapporteur on the independence of judges and lawyers of the United Nations Human Rights Commission, welcomed President Ciampi's veto of the proposed reform. In a letter dated 15 December 2004 addressed to President Ciampi, Despouy condemned the reforms, stating that they "represent a worrying limitation to the guarantees of independence". 

Labelled as "a rare political move" President Ciampi's act has politicised the sentiment expressed by Italy's judiciary. In protest of the proposed reforms, a strike was called by the National Magistrates' Association, whose members account for 90 percent of Italy's judges and prosecutors. They claimed that 80 percent of judges and prosecutors refrained from attending work during the one-day strike. This was the third strike over the past year in protest against the ratification of the bill. In further objection, over half (4,500) of Italy's 8,000 magistrates signed a letter claiming that the new reforms would make them "less free and independent". 

Both the United Nations Human Rights Committee (UNHRC) and the Committee of Ministers of the Council of Europe undertake close scrutiny of Italy's judicial system and its consistent failure to maintain adequate human rights protection in this area. 

The UNHRC has criticised the present government's political attacks on the judiciary, the practice of holding offenders for lengthy periods in preventative detention and the practice of relying on the defendant's testimony. The inattention to the rights of the abused, and Italy's failure to develop a sound rights-based legal culture are further issues of strong critique. 

On 8 December 2004 the Committee adopted two interim resolutions to assess Italy's compliance with several judgements of the European Court of Human Rights. They dealt with the Italian authorities' failure to enforce domestic judicial eviction decisions in favour of dispossessed apartment owners and the violation of a freemasons' association's rights regarding restriction of its members from accessing posts in the civil service of the Marches Region. 

Incentive for the introduction of the reforms 

It has been suggested by opponents to the bill Prime Minister Berlusconi was motivated by retribution against the judiciary in introducing the reforms. In response to a 2003 conviction against Cesare Previti for the paying of bribes and the buying off of judges, Prime Minister Berlusconi stated that "[t]he aim of these judges is not to establish justice, but instead to strike at those who have a mandate to rule Italy." Further, Prime Minister Berlusconi has previously used his parliamentary majority to change laws relating to three of the four proceedings that were hanging over him when he took over as head of government. 

The future of the reforms 

Despite international and domestic criticism, Prime Minister Berlusconi stated that the bill would be ratified by February. Subsequent to President Ciampi's veto, the bill has returned to Parliament, where it is likely that it will be ratified a second time. President Ciampi cannot refuse to sign the bill again. The most probable outcome will be an enforced acceptance of an undemocratic violation of the doctrine of the separation of powers between the Italian judiciary and the executive.

TURKEY: Rights advisor resigns

The chairman of the Turkish prime minister's human rights advisory board has confirmed to the BBC that he will resign from his post. Yavuz Onen, who is leaving with five others, has bitterly criticised the attitude of the Turkish government towards human rights. His departure is an embarrassment for the government. 

...The advisory board and the government had clashed before, following a report from the board that criticised the country's attitude towards its minorities and questioned some of the fundamentals of Turkey's constitution. 

The government effectively ignored it; at one point, locking it out of its own offices. 

- BBC News (Istanbul), 26 March 2005 

NEPAL: Making it easy 

Last month, Nepal's King Gyanendra seized power in the capital Kathmandu, imprisoned political party leaders and vowed to crush the nine-year old Maoist insurgency that has killed 11,000 people and crippled the economy. 

In public at least, the Maoists have taken it all in their stride. 

"After the king's move it has become easier," said Comrade Adiga, Nepali for Firm. "Before, the political parties were creating all sorts of confusion. But now they are not there. Our fight is now head-on with the king and we think we can win it." 

- 'Nepal's Maoists take heart from king's power grab', Reuters, 22 March 2005.