The United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (Sub-Commission) met in Geneva, Switzerland, from August 3rd through August 28th, 1998 for its fiftieth session. The Sub-Commission is a subsidiary body of the Commission on Human Rights (Commission). It is composed of 26 members who are nominated by their respective governments and elected to four-year terms by the Commission. Under the principle of geographic distribution, the Sub-Commission has seven members from Africa, five from Latin America, five from Asia, three from Eastern Europe, and six from Western Europe and Other (including Australia, Canada, New Zealand, and the United States).
The mandate of the Sub-Commission includes human rights standard-setting as well as specific review of country situations and current human rights issues in all parts of the world. Because of its role in initiating action within the United Nations human rights system and its accessibility to non-government organizations (NGO), each year hundreds of human rights activists from dozens of countries travel to Geneva to attend and address the session of the Sub-Commission. In addition, the Sub-Commission is attended by observers from governments, UN bodies and specialized agencies, and other intergovernmental organizations.
The Sub-Commission develops resolutions that are presented to and often adopted by the Commission. Members of the Sub-Commission also prepare working papers and studies on human rights problems. Since many treaties and other human rights instruments have been promulgated, the Sub-Commission has de-emphasized its standard-setting function and has given greater attention to promotion, problem solving, implementation, and the use of public pressure to improve human rights.
A. Summary of the 50th Session
At its 50th session in 1998 the Sub-Commission celebrated the 50th anniversary of the Universal Declaration of Human Rights. The Sub-Commission also considered resolutions on country situations in Afghanistan, Algeria, Bahrain, Belarus, Bhutan, the Democratic People's Republic of Korea, and Mexico. In addition, the Sub-Commission took a new initiative by adopting a thematic resolution, focusing on the protection of human rights defenders in nine countries, including Burma, Colombia, the Democratic Republic of the Congo, Honduras, Indonesia, Nigeria, the Philippines, Tunisia, Turkey, and the Federal Republic of Yugoslavia. The Sub-Commission completed considerable work in the area of economic, social, and cultural rights, including the final report on the Relationship Between the Enjoyment of Human Rights, in Particular Economic, Social, and Cultural Rights, and Income Distribution.' The recommendations in this final report will have a significant impact on the future work of the Sub-Commission. In particular, the Sub-Commission will restructure its agenda so as to include a Social Forum that will invite the participation of major international financial organizations such as the World Back and International Monetary Fund. The Sub-Commission also decided to form a sessional working group, for a three-year period, to examine the working methods and activities of transnational corporations. In addition, the Sub-Commission welcomed the final report on Systematic Rape, Sexual Slavery, and Slavery-Like Practices During Armed Conflict, Including Internal Armed Conflict. Furthermore, the Sub-Commission adopted the Draft International Convention on the Protection of all Persons from Enforced Disappearance.
The Sub-Commission also continued to reform its working methods. This year, members of the Bureau of the Commission visited the Sub-Commission in an effort to encourage these reforms. During the second week of the Sub-Commission session, the Commission Bureau met with the Sub-Commission in private and public sessions as well as with non-governmental organizations and government representatives. The reforms proposed will likely have a significant impact on the future of the Sub-Commission.
During its 50th session, Sub-Commission members listened to
statements from representatives from non-governmental organizations
(NGOs). Collectively, these NGO representatives raised their concerns
over the human rights situations in over thirty countries. Among
those countries most frequently mentioned were Afghanistan, Algeria,
Indonesia, Kashmir, Kosovo, Mexico, Rwanda, Sri Lanka, Sudan,
Turkey, and the United States of America.
B. 50th Anniversary of the Universal Declaration
During its 50th session in August 1998 the Sub-Commission
held a special meeting to celebrate the adoption of the Universal
Declaration of Human Rights fifty years ago in 1948. Sub-Commission
members from each of the five regions of the world noted that
the Declaration's promulgation marked the beginning of the modern
struggle to protect human rights. The Declaration provides a
worldwide definition of human rights and an authoritative interpretation
of the human rights obligations of U.N. Member States under the
The Universal Declaration of Human Rights reflects its place in history because it responds to the wounds and horrors of its era and thus articulates the importance of rights which were placed at great risk during the decade of the 1940s with the Holocaust and World War II, that is: the rights to life, liberty, and security of person; freedoms of expression, peaceful assembly, association, movement, thought, conscience, religion and belief, and; protections from slavery, discrimination, arbitrary arrest, unfair trial, and invasions of privacy. The Universal Declaration contains provisions for economic, social, and cultural rights, including the rights to free choice of employment; equal pay for equal work; and a standard of living adequate for the health and well-being of each person, including food, clothing, housing and medical care, as well as social security. In addition, the Declaration provides for duties to the community and with regard to the rights of others.
The Universal Declaration has had its greatest impact as an
inspiration and foundation for international and national efforts
throughout the world to protect human rights. The Universal Declaration
has entered the pantheon of core inspirational utterances of humankind,
along with the Magna Carta, the French Declaration of the Rights
of Man and Citizen, and the U.S. Declaration of Independence.
The Universal Declaration has become part of a worldwide culture
or powerful ideology of human rights which is more pervasive than
any political philosophy or economic system. During the Sub-Commission's
special meeting on the Universal Declaration, Rajenda Goonesekere
(expert from Sri Lanka) responded eloquently to some arguments
that have been raised against the universality of the Declaration:
It is my observation . . . that almost always those arguments are raised not by
the ordinary people, but by governments or groups in society which have much to lose by recognizing the universality and indivisibility of human rights. No ordinary human being would deny the need to be treated equally and with dignity, to speak freely, not to be arrested and detained arbitrarily, to be free from torture, to have an adequate state of living, to be entitled to just conditions of labour and so on. To say these norms are nothing but a western development is to deny to non-western societies the humane and democratic legacies of their own religions and cultures.
Following adoption of the Universal Declaration, which as Mr. Asbjørn Eide (expert from Norway) noted, is the most important resolution ever adopted by the United Nations General Assembly, the U.N. Commission on Human Rights and the General Assembly drafted the three treaties which comprise the remainder of the International Bill of Human Rights, that is, the Covenant on Economic, Social and Cultural Rights; the Covenant on Civil and Political Rights; and an Optional Protocol to the Civil and Political Covenant.
Inspired by the Universal Declaration and the related International Bill of Human Rights, the United Nations and regional structures in Africa, Europe, and the Western Hemisphere have drafted, promulgated, and now help to implement more than 80 human rights treaties, declarations, and other instruments dealing with such concerns as genocide, racial discrimination, discrimination against women, violence against women, torture, the prevention of torture, religious intolerance, the rights of disabled persons, the right to development, the rights of migrants, the rights of non-citizens, and the rights of the child. These treaties and other instruments have been the subject of further elaboration and interpretation by international and regional supervisory mechanisms which are often able to establish a new level of protection for human rights. Human rights law has thus become the most codified domain of international law.
The Universal Declaration is also cited and/or its provisions
are reflected in the rights guaranteed by constitutions and statutes
of many countries. The Universal Declaration has been cited and
used as a basis for establishing both internal and external or
foreign policies of nations and regional groupings.
The Universal Declaration of Human Rights has also inspired a broad human rights movement with a global network of hundreds, if not a couple thousand, non-governmental organizations at the local, national, and international levels whose work is mutually reinforcing and effective. Some non-governmental organizations have a significant impact on the formulation of foreign policy; others influence national or local policies or actions. International non-governmental organizations have an important role in providing credibility and protection for the indispensable efforts of local organizations.
Members of the Sub-Commission noted, however, that there remain many challenges in bringing reality to the rights which are set forth in the Universal Declaration. The horrible abuses which are occurring in some countries demonstrate that there is much which needs to be done. Françoise Hampson (expert from the United Kingdom) further suggested that each nation celebrate the 50th anniversary by ratifying one additional human rights treaty and by withdrawing one reservation to a human rights treaty which had previously been ratified.
II. Sub-Commission's Actions on Country Situations
A. Non-Duplication Issue
The Sub-Commission continued to reform its methods regarding discussions under agenda item 2. Beginning in 1993, the Commission increasingly criticized the Sub-Commission for needlessly repeating the Commission's actions on country situations. Most of the country resolutions adopted by the Sub-Commission prior to its 49th session (1997) were repetitions of actions taken by the Commission and were often weakened by drafting and procedural problems.
On August 29, 1996, however, the Sub-Commission laid the basis for a path-breaking reform with respect to its country resolutions. In its decision 1996/115 the Sub-Commission agreed to take no action at its 49th session (1997) under agenda item 2 in respect of human rights situations which the Commission was considering under public procedures for dealing with human rights violations. The Commission, in its resolution 1997/22, expressed its appreciation of the steps undertaken by the Sub-Commission to reform and improve its methods of work, in particular "the decision to avoid duplication with the work of the Commission by not taking action during its 49th session on human rights situation under consideration in the public procedures of the Commission" and requested the Sub-Commission "to refrain henceforth from duplicating action by the Commission with regard to country situations under consideration in the public procedures of the Commission and, furthermore, limit action to exceptional cases in which new and particularly grave circumstances arise."
With its decision 1997/113 of August 27, 1997, the Sub-Commission decided "not to adopt resolutions or decisions henceforth under [agenda item 2] in respect of human rights situations which the Commission is considering under the public procedures for dealing with human rights violations." In its resolution 1998/28 of April 17, 1998, the Commission took note with interest of Sub-Commission decisions 1996/115 and 1997/113 and invited the Sub-Commission to continue its efforts to avoid duplication with the work of the Commission. Although the work of the Sub-Commission under agenda item 2 during its 50th session strongly reflected this new approach, a number of actions tended marginally to weaken the Sub-Commission's efforts at avoiding duplication with the work of the Commission.
B. Overlap With the Work of the Commission
Much of the work performed by the Sub-Commission under agenda item 2 during its 50th session represented new efforts to address violations which had not been given adequate attention by the Commission. Indeed, the principal focus of the Sub-Commission's work related to new countries, each of which will be discussed separately in the next section. A few initiatives, however, did continue to overlap marginally with the work of the Commission.
On August 21, 1998, for instance, the Sub-Commission adopted resolution 1998/17 which expressed concern over the situation of women and girls in Afghanistan. This resolution noted the "continuous suffering of Afghan women under the prohibitions placed upon them by the Taliban, which include confinement to the home and other restrictions on their freedom of movement, as well as denial of the right to work, denial of education and limitations on their access to medical care." Most importantly, the resolution represented a joint effort brought forth by Muslim members of the Sub-Commission to voice a uniquely Islamic response to the situation in Afghanistan. The Muslim members asked the Sub-Commission to express its opposition to the religious extremism of the Taliban Government in Afghanistan, and also to show its concern over the severe abuses of human rights which have resulted.
While the human rights situation within Afghanistan is quite severe, however, it has received significant attention at the level of the Commission, and has for many years been the subject of resolutions adopted by that human rights body. The Commission has also assigned a Special Rapporteur to the human rights situation in Afghanistan, who presented his latest report on that country to the Commission at its 54th session. The argument may be raised that the Sub-Commission's efforts in this instance specifically revolved around the repression of the rights of women and girls, and also focused on the Taliban's extremist religious perspective, thereby minimizing the substantive overlap between the work of the Commission and Sub-Commission. In regards to the rights of women and girls, the Commission has certainly already voiced its own concern. For example, in its 1998/70 resolution on the human rights situation in Afghanistan, the Commission specifically paid attention to the plight of women and girls within the country and urged the Government of Afghanistan to "bring to an end without delay all violations of human rights of women and girls."
While the situation of women in Afghanistan no doubt merits international attention, it remains a question as to whether the efforts made by the Sub-Commission in this matter were in fact needed. Duplication, therefore, remains an important issue not only pragmatically, for the sake of institutional efficiency, but also ethically, as there are many human rights situations around the globe which merit attention from the United Nations human rights bodies.
Secondly, as an expression of support for the United Nations Draft Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, the Sub-Commission passed, under agenda item 2, resolution 1998/3 advocating the protection of human rights defenders in all countries of the world. While the substance of this resolution will be discussed in greater detail during the next section, the issue of duplication with the work of the Commission will be, for now, the primary focus. The Sub-Commission specifically expressed concern over the violations of the rights of human rights defenders in Algeria, Colombia, Congo, Guatemala, Honduras, Indonesia, Northern Ireland, Kosovo, Myanmar, Nigeria, the Philippines, Tunisia, and Turkey. Several of the countries mentioned, however, are countries that have been addressed by the Commission in recent years, including Congo, Guatemala, Myanmar, Nigeria and the Federal Republic of Yugoslavia.
There was also some criticism that the Sub-Commission may have acted prematurely in the adoption of this resolution, as the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms has not yet been approved by the General Assembly. Still, this resolution does represent a positive development insofar as it attempts to break new ground by combining thematic and country related concerns. Resolutions of this kind may offer the Sub-Commission a different mechanism for advancing and promoting human rights concerns. While this strategy holds considerable opportunity for the crafting of more effective and balanced country related resolutions, the question of duplication of effort remains problematic and needs to be considered by the Sub-Commission in the future if it increasingly drafts these types of resolutions.
In addition to the resolutions passed on the human rights situation in Afghanistan and on the violations of the rights of human rights defenders, Sub-Commission members also agreed to a consensus statement presented by the Chairman of the Sub-Commission on the human rights situation in Kosovo. This statement gave voice to serious concern over ethnic hostilities, endemic violence, and mass displacement within the region. As mentioned, the Republic of Yugoslavia has already gained a significant degree of attention from the Commission on Human Rights. The situation in Kosovo, however, may highlight the need for some flexibility with regards to the general rule of non-duplication. First, the human rights situation in Kosovo is striking in part due to its accelerated deterioration and, with the displacement of nearly 10 percent of the population, to the sheer scope of its regional ramifications. By issuing a chair statement, the Sub-Commission was able to demonstrate its support for the humanitarian and relief efforts within Kosovo, while at the same time serving to again bring international attention back to the unraveling of human rights and fundamental freedoms within the region. Second, because the Sub-Commission was able to act on the situation in Kosovo through a statement of consensus, there was arguably no duplication with the work of the Commission on this matter. There was, therefore, no resolution to be disputed and no contentiousness on the part of Sub-Commission members over the final statement. Because the Sub-Commission did not consider a full resolution on the human rights situation in Kosovo, opting for a chair statement may have helped balance the issues of non-duplication and international urgency.
Further, the Sub-Commission also took some steps to highlight the human rights situation in Iraq by adopting decision 1998/114 which advocated increasing humanitarian aid to Iraq and urged lifting policies of economic embargo against the country. As with all the countries previously mentioned, Iraq has also been the focus of considerable attention from the Commission in previous years. The decision from the Sub-Commission was somewhat unique, however, in that it raised specific concern over the consequences of international economic policies which effectively harmed the civilian population of Iraq. The substantive nature of the decision on humanitarian aid to Iraq was largely distinct from the efforts brought forth by the Commission. This decision, therefore, may not be considered an explicit response to a country situation as may be normally defined, but rather as an expression of humanitarian concern on the part of the Sub-Commission. Again, as with the use of a chairman statement, the adoption of a decision on the human rights situation within a country offers the Sub-Commission an alternative to the adoption of a full resolution. The Sub-Commission, then, can effectively employ different kinds of strategies which will allow it to address specific country issues and needs. The question of which strategy to employ, if at all, may still become a difficult one. In the future, if country work continues to be part of the mandate of the Sub-Commission, this expert body will have to increasingly balance concerns over institutional duplication, international urgency, and strategical appropriateness.
C. Resolutions Adopted
Despite some overlap with the work of the Commission, the Sub-Commission
was generally successful in taking action with respect to country
situations which had been unaddressed at the level of the Commission.
During its 50th session, the Sub-Commission considered resolutions
on the human rights situations in Algeria, Bahrain, Belarus, the
Democratic People's Republic of Korea (DPRK), and Mexico. In
addition, two other resolutions were sponsored, one by Mr. Asbjørn
Eide (expert from Norway) on the situation of Bhutanese refugees,
the other sponsored by Mr. José Bengoa (expert from Chile)
on the violations of the rights of human rights defenders in all
countries. As in previous years the Sub-Commission agreed in
its decision 1998/102 to vote on all resolutions relating to country
matters by secret ballot.
The Sub-Commission was able to adopt four important resolutions under agenda item 2 during its 50th session. The resolution addressing the human rights situation in Belarus is a good example of the Sub-Commission's ability to do country work which does not duplicate the efforts of the Commission. While there had been some discussion at the Commission during its latest session as to the human rights situation in Belarus, no resolution was ever adopted through that body. The Human Rights Committee, however, did issue its Concluding Observations on Belarus in October of 1997, in which it stated:
The Committee notes with concern that remnants of the former totalitarian rule persist and that the human rights situation in Belarus has deteriorated significantly since the Committee's consideration of the State party's third periodic report in 1992. The Committee notes in particular the persistence of political attitudes that are intolerant of dissent or criticism and adverse to the promotion and full protection of human rights, the lack of legislative limits on the powers of the executive, and the growing concentration of powers, including legislative powers, in the hands of the executive, without judicial control.
The Sub-Commission took the opportunity, then, to express its concern over the reports of severe restrictions of civil rights and political freedoms within Belarus, especially noting the difficult situation faced by independent journalists and human rights defenders within Belarus. The Sub-Commission also voiced its criticism of the governmental structure within the country, noting a "concentration of legislative power in the executive branch of Government and a weak judiciary whose independence has been continuously undermined, such that the rule of law has not been preserved." The Sub-Commission further called on the Government of Belarus to lift restrictions on freedom of expression, to take steps to comply with international human rights standards, and to ensure the independence of the judiciary. The resolution on Belarus was strongly supported and was adopted by a vote of 17 in favor, 4 against, with 3 abstentions, and was met with enthusiasm from human rights organizations who worked on issues of state repression within that country.
Sub-Commission resolution 1998/2, sponsored by Mr. Louis Joinet (expert from France), on the human rights situation in the Democratic People's Republic of Korea (DPRK) was the second resolution in a row to be adopted by the Sub-Commission on that country. During public discussions, members of the Sub-Commission noted that the human rights situation in the DPRK had not improved since the 49th session, and recalled also the efforts made by the DPRK's in August 1997 to withdraw from the International Covenant on Civil and Political Rights (ICCPR). The DPRK has continued, for a period of well over 10 years, to refuse to present its report before the Human Rights Committee. Presenting this report is part of the country's treaty obligations as a member of the ICCPR, and refusing to comply with this obligation has only deepened international scrutiny over the human rights situation within the DPRK. In 1997 the DPRK had also threatened to, and did in fact, postpone its appearance before the September 1997 session of the Committee on the Rights of the Child. In May 1998, however, the DPRK did present a delayed report to that Committee. While the Sub-Commission welcomed the submission of this report, it also reiterated its concern as to the "frequent reports of extrajudicial execution and disappearances within the Democratic People's Republic of Korea, as well as at similar reports that thousands of political prisoners are currently being detained within the country, many of whom have suffered ill-treatment and have consequently died of disease, starvation, and exposure."
Serious concerns were also raised over the lack of even the most basic human rights information from the DPRK. Generally, the Sub-Commission during its 50th session was especially concerned with the role of human rights defenders within all of the countries to which it gave attention. The DPRK was no exception in this regard. The situation in the DPRK highlighted the need for strong links between the Sub-Commission and human rights monitoring organizations. Without these organizational contacts within a country, the work of the Sub-Commission suffers simply due to a lack of accurate and available information. The Sub-Commission noted this problem in its resolution 1998/2 and held the Government responsible for making information difficult to obtain by repressing human rights defenders and independent journalists. As with the resolution on Belarus, there was strong support from Sub-Commission members over the resolution of the DPRK. This resolution passed with a vote of 19 in favor, 4 opposed and 1 abstention.
Sub-Commission resolution 1998/4, which addressed recent developments in the situation in Mexico, represented one of the first efforts made by the Sub-Commission to address human rights concerns within that country. This modest resolution on Mexico noted as an "encouraging sign and a positive development the statement made to the Sub-Commission by the Mexican delegation on the general strategy decided by the Government to resolve the question of Chiapas with the help of dialogue and without first requiring the Zapatista National Liberation Army to hand over its weapons, by reconciliation and peace in dignity and in justice, by re-establishing and maintaining the rule of law, including the disarming of armed groups and the resumption of dialogue with the Zapatista National Liberation Army, and by tackling the structural causes of marginalization and extreme poverty connected with the underdevelopment of that region." While the resolution did deal specifically with the situation in Chiapas, it also noted that human rights violations were not limited to this situation and that the perpetrators of abuse should be brought to justice in all circumstances. The resolution on Mexico was one of the few country specific resolutions sponsored by an expert of the Sub-Commission who did not belong to the Western European and Other' group. Mr. José Bengoa (expert from Chile) sponsored and worked toward the adoption of the resolution on Mexico, a considerable task considering the political strength of the Mexican delegation's lobbying efforts to defeat the resolution. This resolution gained a surprising amount of support from Sub-Commission members and was adopted by a vote of 12 in favor, 6 against, with 6 abstentions.
As mentioned in the previous section in issues of duplication, Mr. Bengoa also sponsored Sub-Commission resolution 1998/3 on human rights defenders which was also considered under agenda item 2. In general, protecting the important role of human rights defenders showed itself to be a prominent theme found in nearly every country resolution considered by the Sub-Commission at its 50th session. In addition to combining thematic and country specific concerns, this resolution was also unique in that it was accompanied by an annex listing the actual names of notable human rights defenders, representing every region of the world, who were at risk of persecution within their countries. The Office of the High Commissioner for Human Rights was encouraged through this resolution to make inquires throughout the coming year as to the safety of these persons and organizations. The resolution further condemned the killings of prominent human rights defenders in Algeria, Colombia, Guatemala, Honduras, Kosovo and Northern Ireland, and again affirmed the positive role played by grass-roots level human rights defenders in promoting and protecting human rights. The Sub-Commission also took the opportunity to invite the United Nations General Assembly to adopt the draft Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, as contained in the annex of Commission on Human Rights resolution 1998/7. Despite taking issue with the human rights situations in several countries, the resolution on human rights defenders was well supported by the Sub-Commission and was passed with a vote of 21 in favor, 3 against, with 0 abstentions.
D. Resolutions Rejected or Withdrawn
While the Sub-Commission was able to take very positive steps towards the adoption of resolutions on new country situations during its 50th session, and while several of these initiatives received widespread support from Sub-Commission members, there were a few resolutions which did not proceed through to this stage. For example, the Sub-Commission, for the second year in a row, considered but was unable to adopt a resolution on the human rights situation in Algeria, where an estimated 80,000 persons have been killed since 1992. The draft resolution was originally co-sponsored by Ms. Françoise Hampson (expert from the UK) and Mr. David Weissbrodt (expert from the USA), and would have condemned "the campaign of brutality and violence being waged against the residents of Algeria by terrorist groups, including all incidents of massacre, bombing, disappearance, rape, torture, mutilation and other related human rights abuses." The draft resolution also expressed concern over the general climate of fear and violence within the country of Algeria, resulting in serious difficulties carrying out effective inquiries as to the identity of persons responsible for perpetrating human rights abuse. International human rights organizations had expressed their continuing concern over the level of passive complicity (or active participation) from state security forces in the perpetuation of wide-spread human rights abuse in Algeria. The draft resolution therefore noted the responsibility of the Government of Algeria and that the Government needed to take steps, in accordance with human rights norms, in order to protect their civilian population. In response, however, the Government of Algeria expressed the view that the only real threat to human rights in their country came not from the Government, but rather from terrorist organizations which targeted the civilian population with brutality and violence.
While the Human Rights Committee had issued its Concluding Observations on the human rights situation in Algeria only a few days before the voting by the Sub-Commission on the resolution, and while these Concluding Observations had seriously brought into question the validity of the Government's position, it was not enough to ensure the successful adoption of the controversial resolution. Supporters and opponents of this draft resolution both worked very diligently to advocate their views, and in the end the resolution failed by the very narrowest of margins with a tie vote of 10 in favor, 10 against, with 4 abstentions.
Two other country resolutions were withdrawn from consideration before the voting occurred. A draft resolution on the human rights situation in Bahrain was sponsored this year by Ms. Françoise Hampson (expert from the UK). This draft resolution, would have welcomed the ratification by the Government of Bahrain of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but also expressed concern over continuing reports of human rights violations within that country. After a period of negotiations between resolution sponsors and the Government of Bahrain, a compromise was reached whereby the resolution would be withdrawn if Bahrain agreed to (1) withdraw its reservations on Article 20 and Article 30 (paragraph 1) of the Torture Convention, and (2) to accept a visit by the Commission's Working Group on Arbitrary Detention, with a possible follow-up visit by the Committee Against Torture. The Government of Bahrain agreed to these conditions in order to escape the embarrassment of a potential resolution on Bahrain for the second year in a row. While the Sub-Commission did not adopt a resolution, this case still points to the effectiveness of the Sub-Commission's work relating to specific country situations. Because governments would generally prefer not to have their human rights record be the subject of international scrutiny, having the capacity to take action on country situations affords the Sub-Commission some leverage when encouraging governments to reform problematic human rights practices and policies.
Another resolution considered under the second agenda item was sponsored by Mr. Asbjørn Eide (expert from Norway) and concerned the situation of Bhutanese refugees. The resolution expressed concern over the "plight of the approximately ninety thousand individuals of Nepali ethnicity, the majority of whom had previously lived in Bhutan, who have been residing in camps in eastern Nepal for as long as seven years, as well as an additional ten thousand or more who are living outside the camps in Nepal and India." While this resolution most likely had a good chance of success, the Bhutanese Government had expressed a willingness to cooperate in order to avoid the adoption of the draft resolution. In an effort to encourage negotiations between the Bhutanese and Nepalese Governments, Mr. Eide opted for the presentation of a consensus chairman's statement which has a slightly lower profile than the adoption of a full resolution.
In substance, the chair statement was quite similar to the proposed resolution, and also served to urge the two Governments to "negotiate in good faith towards a peaceful solution consistent with international human rights standards." Unfortunately however, after the presentation of the chair statement, the Government of Bhutan expressed some hesitance in addressing the concerns of the Sub-Commission, suggesting a lack of will on the part of the Government to take concrete steps to help alleviate the problems faced by thousands of Bhutanese refugees. If steps are not taken by the Bhutanese and Nepalese Governments within the next year to ensure the safe and voluntary return of refugees to Bhutan, it is likely that this situation will remain on the Sub-Commission's agenda during its 51st session in 1999.
In summary, the Sub-Commission was able to take innovative actions on a variety of country situations during its 50th session. While there were some minor concerns raised relating to organizational overlap with other UN bodies, there was no outright duplication of the work of the Commission. The ability of the Sub-Commission to perform its own country-related work, and its capacity to offer a unique contribution to the UN system, is a significant credit to efforts made by this body during its 50th session. The Sub-Commission was able to show its strength and competence by addressing some of the most severe, and previously overlooked, human rights situations in the world. By combining strategies of thematic and country-specific resolutions (such as the resolution on Human Rights Defenders), consensus chairman's statements (such as on the situation in Kosovo) with more traditional country related resolutions, the Sub-Commission has increasingly pursued a range of strategies when addressing country concerns. These developments have provided the Sub-Commission with a degree of flexibility in dealing with country situations, and have therefore allowed the Sub-Commission to enhance the scope and effectiveness of its work.
III. Realization of Economic, Social, and Cultural Rights including
the Right to
A. Final Report on the Relationship Between the Enjoyment of Human Rights, in Particular Economic, Social, and Cultural Rights, and Income Distribution.
In its resolution 1998/14 of 20 August 1998, the Sub-Commission welcomed the final report prepared by Mr. José Bengoa (expert from Chile) entitled: "The Relationship Between the Enjoyment of Human Rights, in Particular Economic, Social, and Cultural Rights, and Income Distribution" and its addendum entitled: "Poverty, Income Distribution, and Globalization: A Challenge for Human Rights". In this report, Mr. Bengoa analyzed the global distribution of income with particular focus on the process of "globalization of the economy." Mr. Bengoa noted that the process of globalization is perceived as producing new and growing inequities both within countries and between the countries and regions of the world.
Coupled with a "diminishing ability of States to control the economic development of their countries," Mr. Bengoa concluded that the process of globalization and the resulting inequities in income distribution required international attention. To this end, Mr. Bengoa recommended the formation of a "Forum on Economic, Social and Cultural Rights, hereinafter called the Social Forum."
1. The Social Forum
In its resolution 1998/14 of 20 August 1998, the Sub-Commission endorsed the recommendation in Mr. Bengoa's report of the establishment of a Social Forum within the Sub-Commission. If fully implemented, the Social Forum should have a significant impact on the work of the Sub-Commission. Beginning in 1999, the Social Forum is to meet during the Sub-Commission's annual sessions to analyze violations of economic, social, and cultural rights. Resolution 1998/14 also seeks authorization from the Commission to appoint a Sub-Commission expert as Special Rapporteur on economic, social, and cultural rights to coordinate the work of the Social Forum.
The Social Forum is an innovative step for UN human rights bodies, in general, and for the Sub-Commission, in particular. In addition to input from non-governmental organizations and governments, the proposed Social Forum will break new ground by inviting the participation of international organizations including:
the United Nations Development Programme and the United Nations Children's Fund, specialized agencies, in particular the World Bank; the International Monetary Fund; the International Labour Organization; the United Nations Educational, Scientific, and Cultural Organization; and the United Nations Industrial Development Organization; and other bodies concerned with the promotion and protection of economic, social, and cultural rights.
The main objectives of the Social Forum are (1) the "[e]xchange of information on the enjoyment of economic, social and cultural rights and its relationship with the processes of globalization;" (2) the "[f]ollow-up on the relationship between income distribution and human rights, at both the international and national levels;" (3) the "[f]ollow-up on situations of poverty and destitution in the world, bearing in mind that this amounts to complete and permanent denial of the rights of persons;" (4) the "[p]roposal of standards and initiatives of the juridical nature, guidelines and other recommendations for consideration by the Commission on Human Rights; the Working Groups on the Right to Development; the Committee on Economic, Social and Cultural Rights; the specialized agencies; and other instances of the international system of the United Nations;" and (5) the "[f]ollow-up to the agreements reached at the World Summit for Social Development in Copenhagen and the Earth Summit in Rio de Janeiro on the fulfillment of questions relating to this final report, and to economic, social and cultural rights in general."
The establishment of the Social Forum raises a number of interesting issues. The Social Forum will require a significant amount of time during the already overloaded Sub-Commission sessions. Presently, the Sub-Commission lacks sufficient time to deliberate and consult adequately. Therefore, major restructuring of the agenda will be needed to accommodate the Social Forum. In addition, there is a question whether such prominent institutions as the World Bank and International Monetary Fund will bother to attend the Sub-Commission? If they do attend, will the Sub-Commission be able to manage the Social Forum with such dominant international organizations in attendance?
B. Sessional Working Group on Transnational Corporations
Pursuant to Sub-Commission resolution 1997/11, Mr. El-Hadji Guissé (expert from Senegal) presented a working document to the Sub-Commission at its 50th session on the issue of human rights and transnational corporations. Transnational corporations (TNCs), it was noted, have been implicated in a variety of human rights practices, which may at times jeopardize the well-being of individuals and entire communities. TNCs have been known to adopt policies which perpetuate child labor practices, hazardous working conditions, exploitation of workers, and which may at times interfere with the work of trade unions. This document addressed, similar to the study of Mr. Bengoa, the impact of transnational economic actors on income inequality both nationally and internationally. Mr. Guissé also raised concerns about the far-reaching impact of TNC policies and practices, for example, the threat to environmental sustainability posed by TNCs.
TNCs have come to occupy a prominent position within international economic relationships. The working document noted that there is a need for the international community to give its attention to these influential, yet understudied, economic actors. Their economic strength coupled with a lack of accountability may have very serious consequences in the area of human rights. Underscoring the powerful nature of TNCs in the global economy, the document noted that:
Transnational corporations play an important part in international economic life. Of the 100 biggest concentrations of wealth in the world, 51 per cent are owned by transnational corporations and 49 per cent by States. Mitsubishi's turnover exceeds Indonesia's gross national product (GNP); Ford's turnover exceeds South Africa's GNP; and Royal Dutch Shell earns more than Norway. Transnational corporations are very active in the most dynamic areas of the economy, in particular telecommunications, transport, banking, insurance and the wholesale trade. They have a presence in the vital sectors and are thus in a position to block any moves towards the respect for and protection of human rights.
The document also noted fragments of the international legal framework available to regulate the human rights practices of TNCs. In general, the integration of both national and international mechanisms of accountability was viewed as the most effective strategy towards human rights protection. Yet, the potential for using international law to hold non-state actors, such as TNCs, responsible for violations of human rights is an underdeveloped area within international human rights law and must be further explored by the Sub-Commission and other UN bodies. The document on TNCs carefully noted, however, that most of the efforts devoted to regulating the working methods of transnational corporations have not derived from international instruments, but from other sources such as non-legal guidelines.
Because of the changing landscape of modern global financial relations, and because of the degree of influence that TNCs now have over domestic economies, the Sub-Commission in its resolution 1998/8 of 20 August 1998, decided:
[T]o establish, for a three-year period, a sessional working group of the Sub-Commission, composed of five of its members, taking into account the principle of equitable geographic distribution, to examine the working methods and activities of transnational corporations.
This sessional working group will be the first step towards establishing an effective mechanism for the gathering of information relating to the human rights implications of TNCs. Several questions remain unanswered and could benefit from further study. For example, how the profit-driven nature of TNCs can offer incentives toward bringing TNCs into compliance with international human rights standards remains a potential avenue of inquiry. In addressing these questions, the sessional working group could help make significant gains toward establishing universal standards of conduct for TNCs, and may also help to suggest other strategies which ultimately ensure compliance from TNCs themselves.
The sessional working group is scheduled to meet during the 51st session of the Sub-Commission in 1999, however, it remains unclear how this meeting will relate to the Social Forum established by Mr. Bengoa (see previous section). A timing issue will no doubt need to be resolved, as both of these important, and related, discussions are scheduled to occur in an already over scheduled session. The Sub-Commission may need to combine the complimentary work of the Social Forum and the sessional working group.
D. Human Rights as the Primary Objective of Trade, Investment, and Financial Policy
In its resolution 1998/12 of August 20, 1998, the Sub-Commission expressed its concern over the controversy surrounding the Multilateral Agreement on Investment (MAI) which is being drafted by the Organization for Economic Cooperation and Development (OECD), and further expressed its concern as to the possible negative impact on human rights resulting from the implementation of the Agreement. The Sub-Commission was particularly concerned over "the extent to which the Agreement might limit the capacity of States to take proactive steps to ensure the enjoyment of economic, social and cultural rights by all people, creating benefits for a small privileged minority at the expense of an increasing disenfranchised minority." In keeping with a thematic focus on economic globalization, and building upon the efforts of Mr. Bengoa on income distribution, and of Mr. Guissé on the working methods of transnational corporations, the Sub-Commission urged United Nations financial agencies, such as the International Monetary Fund and the World Bank, to "at all times be conscious of and respect the human rights obligations of the countries with which they work." This view was also consistent with the previous recommendations issued by the Committee on Economic, Social and Cultural Rights in May 1998, in which the Committee asserted that financial institutions have an obligation to formulate policies which are consistent with human rights standards, and that these obligations apply to the areas of trade, finance and investment.
The Sub-Commission's work on income distribution, transnational corporations, and international trade and investment during its 50th session suggests a growing concern with the human rights implications of economic globalization. As all human rights are increasingly seen as interdependent and indivisible, the Sub-Commission expressed its concern over the potential negative impact on all aspects of human rights, engendered by economic forces which are not adequately constrained either by national borders or by international legal and normative mechanisms.
Increasing the institutional competence of UN human rights bodies in this area is a necessary step towards addressing the complexities of the issues raised. Accordingly, the Sub-Commission asked two of its members, Joseph Oloka-Onyango (expert from Uganda) and Deepika Udagama (alternate from Sri Lanka), to prepare a working paper on ways and means by which the primacy of human rights norms and standards could be better reflected in, and could better inform, international and regional trade, investment, and financial policies, agreements, and practices, and how the United Nations human rights bodies and mechanisms could play a central role in this regard.
E. Working Paper on the Right to Access to Drinking Water
The Sub-Commission in resolution 1997/18 had asked Mr.Guissé
to prepare a working paper on the right of access of every person
to drinking water supply and sanitation services. This paper
was presented before the Sub-Commission at its latest session,
and stressed the urgency of the global situation regarding the
right to drinking water. This right is intimately related to
other basic rights such as the right to development, the right
to health, the right to a clean environment, and the right to
food. It is estimated that by the year 2025, some 3 billion people
will lack adequate access to safe drinking water, thereby jeopardizing
the health and sustainability of entire populations. The paper
also suggested that due to the global nature of the drinking water
problem, with unequal access both within and between nations,
the issue is one which must be confronted through international
cooperation and sharing of resources. In addition to problems
of water shortage, however, the report also noted that "this
resource is undergoing increasing degradation and contamination
. . .. The main causes of these problems include the inadequate
treatment of both domestic and industrial sewage water, the destruction
of catchment areas, deforestation and the harmful effects of agricultural
practices based on the heavy use of pesticides and other chemicals,
as well as the dumping of toxic wastes." In this way, the
issues which surround the right to safe drinking water are also
heavily affected by economic globalization and resulting environmental
The right to access to drinking water and sanitation are likely to become even more pressing in the near future. The report offered some hope, however, when it discussed the potential usefulness of groundwater supplies, and noted that if accessed correctly, these supplies would meet the minimum drinking water and sanitation needs of the entire population of the world. The Sub-Commission in resolution 1998/7 on the promotion of the realization of the right to drinking water supply and sanitation echoed the concerns voiced by Mr.Guissé, and recommended to the Commission that he be appointed as a Special Rapporteur to conduct a detailed study on the relationship between the enjoyment of economic, social and cultural rights and the promotion of
the realization of the right to drinking water supply and sanitation, at both the national and international levels. The study should also take into account questions related to the realization of the right to development as it affects the right to water. If the Commission approves the full study, Mr. Guissé is scheduled to present a preliminary report before the fifty-first session of the Sub-Commission in 1999, followed by a more extensive progress report to be submitted at the fifty-second session in 2000, and a final report at the fifty-third session of the Sub-Commission in 2001.
F. Updated Study on Right to Food
Mr. Asbjørn Eide presented a related report updating the Sub-Commission's study on the right to food. The report noted the severe scope of the problem of malnutrition within the world, especially within developing nations, and presented alarming statistics suggesting the need for urgent action in order to ensure the universal right to food:
[A]pproximately 840 million people in developing countries subsist on diets that are deficient in calories (compared with 730 million in the 1987 report). Roughly 96 per cent of food-insecure persons suffer from chronic deficiencies, and approximately 4 per cent experience temporary energy shortfalls caused by natural or human-induced events. Approximately 170 million children under 5 years of age are underweight, representing 30 per cent of the developing world's children.
Mr. Eide also advocated that a broadened conception of nutritional health be adopted which included care for especially vulnerable groups including young children, the elderly, pregnant women and lactating mothers, as well as the disabled and destitute. The report was careful to note that the right to food must be understood to mean not only adequate caloric intake, but rather also to include access to safe and nutritious food, as well as to be free from hunger. In order to best address these issues, and in order to solve the problem of malnutrition, the report suggests that a joint effort be made by experts in the fields of agriculture, nutrition, health, education, social welfare, economics, public works and environmental protection.
Much progress has been made in bringing together experts from these different fields in order to solve the problems of hunger and malnutrition. The report applauded the recent achievements made at the World Food Summit which met in Rome in 1996, and hailed this event as a "milestone in the efforts to bring attention to the right to food and nutrition as a human right." The report specifically addressed the issue of child malnutrition and expressed hope that the adoption of the Convention on the Rights of the Child, with its subsequent near universal ratification, would provide both a normative and legal framework in which to promote the right to food. Further, Mr.Eide also voiced support for the evolving policy discussions relating to the right to food and nutrition which developed from the recent policy document finalized by the United Nations Development Programme in December 1997, entitled "Integrating human rights with sustainable human development."
In its decision 1998/106, the Sub-Commission requested Mr. Eide to review and update his report on the right to food, and to submit the final version of the study to the Sub-Commission at its 51st session in 1999.
G. Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons
The Sub-Commission took an innovative step with its adoption of resolution 1998/26 on 26 August 1998. It this resolution, titled Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons,' the Sub-Commission reaffirmed the right of all refugees and internally displaced persons to return to their homes and places of habitual residence in their country or place of origin. This resolution, however, went one step further by urging "all States to ensure the free and fair exercise of the right to return to one's home and place of habitual residence by all refugees and internally displaced persons and to develop effective and expeditious legal, administrative and other procedures to ensure the free and fair exercise of this right, including fair and effective mechanisms designed to resolve outstanding housing and property problems." This resolution deals with one of the most difficult problems facing the UN High Commissioner for Refugees and other organizations trying to achieve the return with dignity of refugees to their homes and places of habitual residence in countries such as the former Yugoslavia, Rwanda, and Bhutan.
H. Working Paper on the Right to Education including Human Rights Education
With its resolution 1998/11 entitled The Realization of the Right to Education, Including Education in Human Rights,' the Sub-Commission noted with satisfaction the working paper on the right to education prepared by Mr. Mustapha Mehedi (expert from Algeria) and requested him to continue towards a more detailed working paper to be presented during the 51st session in 1999. During the 50th session Mr. Mehedi presented a preliminary working paper on the subject of education, especially addressing the need to develop methods of teaching which specifically incorporate a human rights centered curriculum. The right to education and the right to human rights education were seen as necessarily linked. This paper emphasized the indivisibility of all human rights generally, but specifically advocated the special "cross-sectoral" nature of the right to education. Mr. Mehedi pointed out that the right to education cannot be adequately classified under either the "political/civil" or the "economic/social/cultural" rubric of human rights, as it has implications both within and across each of these conceptual domains.
The paper also addressed the existing legal framework which is already available at the international level to help protect and promote the right to education. In this respect, the paper cited human rights instruments such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, and the Vienna Declaration and Programme of Action, all of which contain provisions ensuring the right to education. The effectiveness of these legal tools, however, must be assessed with reference to the fundamental objectives of education. The paper supported a multi-leveled approach to the goals of education, centering around the definition provided to UNESCO by the International Commission on Education for the Twenty-first Century. This definition emphasized the importance of developing individual competence and learning, while at the same time promoting and maintaining social tolerance and peace.
Mr. Mehedi is scheduled to present a more substantial paper on the right to education at the 51st session of the Sub-Commission in 1999. There remains, however, a concern about the duplications of effort, as the Commission has authorized its own Special Rapporteur on the right to education, and has taken several initiatives regarding the United Nations Decade for Human Rights Education.
IV. Reform of the Sub-Commission
One of the significant events of this year's session was the visit from August 10 to15, 1998 by the Bureau of the Commission, the Sub-Commission's parent body, which is undertaking a review of the mechanisms of the Commission including the working methods of the Sub-Commission. In preparation for this visit, the Sub-Commission prepared a document entitled: "Enhancing the Effectiveness of the Sub-Commission." Unfortunately this document did not receive the attention it deserved from the members of the Commission Bureau.
A. Note by the Chairperson of the Sub-Commission on Enhancing the Effectiveness of the Sub-Commission
On the morning of August 10, 1998 the Sub-Commission met in a private session with the members of the Bureau of the Commission. During this session, Judge El-Hadji Guissé (Senegal), Chairperson of the Sub-Commission's 50th session, presented the document prepared by the Sub-Commission. The document reflected on the Sub-Commission's past contributions, its present contributions, and offered an evaluation of and discussed further enhancements for the Sub-Commission.
1. Past Contributions
Judge Guissé discussed how "[t]he Sub-Commission has played and continues to play a unique role in the field of human rights as the only expert body serving the main UN policy-making body, the Commission." Judge Guissé stated further that "the Sub-Commission has been a key engine of the overall expansion of the human rights activities of the United Nations, and has the potential to continue to do so."
The Sub-Commission's functions have expanded and changed in emphasis from standard setting to promotion and protection of human rights and encouragement of implementation by States of human rights norms and standards in accordance with international instruments. A review of its activities demonstrates that the Sub-Commission has considerable achievements to its credit. For example, the Sub-Commission played a major role in mobilizing the UN system in the struggle against apartheid, and prepared the initial draft of the UN Declaration and later the International Convention on the Elimination of All Forms of Racial Discrimination, the Declaration on the Protection of All Person from Forced Disappearance, the draft UN Declaration on the Rights of Indigenous Peoples now pending before the Commission, the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, and the Guidelines for the Regulation of Computerized Personal Data Files.
2. Present Contributions
The document presented to the Bureau of the Commission elaborated on the present contributions of the Sub-Commission, including its unique role in the human rights field, its review of country situations, and its access to NGOs.
The Sub-Commission makes three relatively unique contributions to the human rights field, namely: (1) undertaking comprehensive studies that contribute to the work of the human rights bodies, particularly to the UN treaty-monitoring bodies; (2) bringing to the attention of the Commission situations not under review by the Commission but which appear to reveal gross and systematic violations of human rights or emerging human rights concerns; and (3) supporting its working groups.
The annual review that the Sub-Commission holds on situations of violations of human rights and fundamental freedoms and, in particular, of the policies of racial discrimination and segregation in all countries constitutes a central part of its work. In particular, the Sub-Commission: (1) represents one of the most relevant international forums in the field of human rights; (2) allows new situations, trends, and facts that emerge in the world to be expressed; (3) enables an analysis of concrete situations to be undertaken together with more general items that are considered by the Sub-Commission, thus giving to thematic studies a wider comprehension and objectivity; (4) allows the study of countries and cases not considered by the Commission; and (5) enables the adoption of urgent measures in cases of emergency situations.
An important aspect of the evolution of the Sub-Commission is that it has provided a platform for NGOs that is much more accessible than that offered by any other UN body. This unique role manifests itself in particular in the functioning of its thematic working groups, which facilitate interaction between the UN and governments and provides a forum for disenfranchised groups which otherwise have little or no access to the international system.
3. Critical Evaluations and Future Enhancements
The Sub-Commission noted in its document presented to the Bureau of the Commission that it is well aware that every UN mechanism has to evaluate its own performance critically in light of new developments and needs. Over the last few years, the Sub-Commission has carried out a thorough review of its methods of work and made significant changes. In 1991-92, an inter-sessional working group prepared a study entitled "Guidelines Concerning its Methods of Work." Further revisions were made in 1994 and 1995. This work has been communicated to the Commission. In 1996 the Sub-Commission initiated a process to adopt a consolidated set of its rules of procedure and methods of work, based on a working paper by one of its members. The intention is to complete this work in 1999.
a. Improvement of cooperation with other Human Rights Bodies
A much broader and systematic consultation with other UN and regional human rights bodies should be undertaken. To this end, the Sub-Commission should continue to enhance its cooperation with the treaty-monitory bodies.
b. Improvement in the Preparation of Studies
Efforts are now being made to plan future studies on the basis of identification of priorities among issues that need exploration. The Commission, in its resolutions 1197/22 and 1998/28, has suggested that the Sub-Commission should concentrate on studies that meet the needs of the Commission, the treaty-monitoring bodies, and the core issues facing the human rights world. The Sub-Commission fully endorses this view, and has taken several recent initiatives in this direction. In its decision 1997/112 of 27 August 1997, the Sub-Commission took note of a conference paper entitled "Criteria for New Studies" and added the criteria contained in this report to its guidelines concerning its methods of work contained in the annex to its resolution 1992/8 of 26 August 1992.
c. Improvement in Membership: Independence and Expertise
The quality of the Sub-commission's work depends greatly on the independence and expertise of its members. Governments and inter-governmental bodies should strictly observe this independence. Criteria for elections have been established and should be applied by governments in their nomination of candidates and by members of the Commission in their election of Sub-Commission members.
Additional mechanisms should be adopted to enhance the independence of the Sub-Commission. This year, there was considerable discussion about whether members should be allowed to speak on human rights situations in their own countries. At the conclusion of that discussion, the Sub-Commission developed a compromise formulation:
When examining a situation which appears to reveal a pattern of gross and consistent violation of human rights in a country of which an expert of the Sub-Commission is a national, it would be desirable that the expert concerned not participate in the debates. The ultimate decision on whether or not such expert will intervene in the public discussion remains the responsibility of the expert concerned.
Following this formulation will enhance the appearance of and actual independence of the Sub-Commission and allow experts a way of avoiding undue influence by their governments. This formulation, however, is ambiguous as to whether it applies only to country situations under public review or also to discussions in plenary session under the 1503 confidential procedure. Resolving this ambiguity would further the independence of Sub-Commission members.
B. Statement of the Chairperson of the Bureau of the Commission on Human Rights
In the afternoon of August 10, 1998, Ambassador Jacob Selebi (South Africa), Chairperson of the Commission, addressed the Sub-Commission. Ambassador Selebi noted that while the appearance of the Chairperson of the Commission before the Sub-Commission was a tradition of many years, it was particularly critical this year in the context of the Sub-Commission's discussion of its working methods. Ambassador Selebi stated that the Sub-Commission has much to offer the human rights community so long as it takes care to follow the guidance received from the Commission. In particular, he stated that the Sub-Commission should focus on issues as to which it can make a distinctive contribution to the work of the Commission and avoid duplicating the work of the Commission. Ambassador Selebi mentioned that the Commission has praised the Sub-Commission's restructuring of its agenda, its decision to limit the initiation of new studies, and its efforts to achieve a compilation of the existing rules of procedure and procedural questions to be resolved. Despite these positive points, however, the Commission expected more efforts at reform during the Sub-Commission's 50th session.
Ambassador Selebi referred to Commission resolution 1998/28, which mentioned five areas of work of the Sub-Commission that required attention. In its resolution 1998/28, the Commission requested the Sub-Commission to further improve its efficiency and called upon the Sub-Commission to: (1) focus on its primary role as an advisory body of the Commission; (2) focus strictly on questions relating to human rights in accordance with its mandate; (3) pay particular attention to the selection of studies; (4) improve the efficiency of its work with non-governmental organizations; and (5) make efforts to increase the perception and reality of its independence. Ambassador Selebi went on to state that the principal role of the Sub-Commission was to support its working groups, undertake studies that contributed to human rights bodies, and deal with country situations not under consideration by the Commission.
At the conclusion of his speech, Ambassador Selebi announced
a series of sessions to meet from August 11 through 13, 1998 with
the Bureau of the Commission at which specific proposals for reform
of the Commission's mechanisms, including the Sub-Commission's
working methods, would be discussed with non-governmental organizations
and government representatives. Participants at these sessions
had before them an informal working paper containing 166 proposals
received from non-governmental organizations and governments.
Proposals ranged from enhancing the qualifications for experts
to abolishing the Sub-Commission altogether. Proposals receiving
the most favorable attention included the recommendation that
the Sub-Commission focus on its original role as a think-tank
for the Commission, term limits for experts, and the avoidance
of duplication of work being considered by the Commission.
One of the more controversial proposals, supported mainly by governments, is that the Sub-Commission should neither consider nor pass resolutions on country situations. Most non-governmental organizations, however, supported the Sub-Commission's current mandate of considering country situations Removing its authority to consider country situations would have a deleterious effect on protection and promotion of human rights. The Sub-Commission plays a rather unique role in the UN human rights system, and the value of this role is apparent in the consideration of country situations. Indeed, the Sub-Commission's independence allows it to address and identify human rights problems that the government representatives at the Commission may be reluctant to handle.
A. Systematic Rape, Sexual Slavery, and Slavery-Like Practices During Armed Conflict, Including Internal Armed Conflict
The Sub-Commission addressed the human rights violations perpetrated
against civilians during periods of armed conflict during its
50th session. Ms. Gay McDougall (alternate member, USA), Special
Rapporteur, presented her final report on rape, sexual slavery,
and slavery-like practices during armed conflict, which had three
primary objectives, 1) to reiterate the call for a response to
the use of sexual violence and sexual slavery during armed conflict,
2) to emphasize the true nature and extent of the harms suffered
by women who are raped, sexually abused and enslaved by parties
to an armed conflict, and 3) to examine prosecutorial strategies
for penalizing and preventing international crimes committed against
women during armed conflict.
Ms. McDougall highlighted the need for the United Nations to take effective steps towards curtailing the abuses perpetrated against women during periods of armed conflict, and noted that too many times in the past, the international community has remained complicit and silent on these issues. Women remain at special risk during periods of war and armed conflict. By viewing sexual slavery as a crime against humanity, a form of genocide, slavery, torture, or as a war crime, international legal instruments may be successfully employed to hold individuals responsible for their abuses. Ms. McDougall noted, however, that:
[A] new attitude is evolving with respect to the prosecution of sexual violence committed during armed conflict as serious international crimes. The international community has increased its efforts to end the cycle of impunity for these crimes by ensuring, for both victims and perpetrators, that justice is done. The International Criminal Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda, as well as the proposed permanent International Criminal Court, are welcome advances in this campaign for justice, and it is hoped that these tribunals will endeavour to implement the best practices possible in this regard.
In addition, in one of its more controversial aspects, the
report drew international attention to the abuses perpetrated
against the more than 200,000 women enslaved by the Japanese military
in so-called "comfort stations" during World War II.
The appendix of the report discussed at length the legal and normative
issues surrounding the comfort women issue, prompting a response
from the Japanese Government.
Recognizing the contribution made by this report, the Sub-Commission recommended in its resolution 1998/18 that the Commission extend the mandate of Ms. McDougall as the Special Rapporteur on systematic rape, sexual slavery and slavery-like practices during armed conflict, including internal armed conflict, for another year. Upon approval from the Commission, Ms. McDougall is scheduled to present an update to her report at the Sub-Commission's 51st session next year.
B. Studies Undertaken Pursuant to the Sub-Commission's Cooperation with the Committee on the Elimination of Racial Discrimination
One way in which the Sub-Commission contributes to the field of human rights is by cooperating with the treaty-monitoring bodies. In an effort to further such cooperation, the Sub-Commission has prepared joint studies with treaty-monitoring bodies. In its decision 1996/120 of 29 August 1996, the Sub-Commission on Prevention of Discrimination and Protection of Minorities decided to entrust two of its members, Mr. José Bengoa and Mr. Mustafa Mehedi, with the preparation of a joint working paper on article 7 of the International Convention on the Elimination of All Forms of Racial Discrimination, together with two members of the Committee on the Elimination of Racial Discrimination (CERD), Mr. Ivan Garvalov and Mrs. Shanti Sadiq Ali. At this year's session, the Sub-Commission had before it the working paper that resulted from this cooperative effort.
The Commission on Human Rights, in its resolutions 1996/25, 1997/22, and 1998/28, called upon the Sub-Commission and its members to "further enhance cooperation with mechanisms of the Commission and, within their competence, with all relevant bodies, including human rights treaty bodies."
The Committee on the Elimination of Racial Discrimination (CERD) discussed this issue and decided to propose to the Sub-Commission nine topics for the preparation of studies. In response to this request, the Sub-Commission at its 49th session, in its decision 1997/118 adopted on 28 August 1997, decided to entrust one of its members, Mr. Marc Bossuyt, with the preparation of a working paper on the concept of affirmative action. At this year's session, the Sub-Commission had before it this working paper. In its resolution 1998/5 of 20 August 1998, the Sub-Commission expressed its gratitude to Mr. Bossuyt and decided, since the concept and practice of affirmative action requires careful and comprehensive inquiry, to request that the Commission approve Mr. Bossuyt as Special Rapporteur of the Sub-Commission with the task of preparing a study on this subject.
The Sub-Commission also considered other topics proposed by CERD. In its decision 1998/103 of August 20, 1998, the Sub-Commission decided to entrust Mr. David Weissbrodt with the preparation, without financial implications, of a working paper on the rights of persons who are not citizens of the country in which they live, to be submitted under the agenda item entitled 'Comprehensive Examination of Thematic Issues Relating to the Elimination of Racial Discrimination,' in order to enable it to take a decision at its fifty-first session on the feasibility of a full study on that subject.
The Sub-Commission further considered ways of contributing material to the World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance (Racism Conference) to be held not later than the year 2001. In its resolution 1998/6 of 20 August 1998, the Sub-Commission recommended that the topics for studies undertaken in response to the suggestions from CERD be considered using materials developed by the Sub-Commission, in the preparatory process and at the World Conference itself. Furthermore, the Sub-Commission decided to request one of its members, Mr. Paulo Sergio Pinheiro (expert from Brazil), to prepare a paper on proposals for the work of the World Conference to be considered by the Sub-Commission at its fifty-first session. The Sub-Commission decided to carry out further studies without delay and to transmit recommendations for studies to the Commission at its fifty-fifth session and, through the Commission, to the Preparatory Committee for the Racism Conference.
One of the more difficult issues facing the Sub-Commission in recent years is the responsibility of non-State actors as perpetrators of human rights abuse. For example, terrorist groups threaten fundamental human rights by targeting civilian populations with widespread killing, bombing, mutilation, and other forms of intimidation. Further compounding and escalating these problems, some States may react against real or perceived internal terrorism with their own counter-terrorism campaigns, resulting in serious human rights violations including indiscriminate killings, disappearance, and torture.
The Sub-Commission has in the past addressed the issue of human rights and terrorism, and in its resolution 1997/39 voiced its "unequivocal condemnation of all acts, methods and practices of terrorism regardless of their motivation, in all its forms and manifestations, wherever and by whomever committed, as acts of aggression aimed at the annihilation of human rights . . .." In 1997, the Sub-Commission recommended that the Commission authorize the appointment of Ms. Koufa (alternate member, Greece) as Special Rapporteur to conduct a comprehensive study on the subject of human rights and terrorism. Ms. Koufa was scheduled to present her preliminary report to the Sub-Commission at its 50th session, but unfortunately due to time constraints this report could not be prepared in time. The Sub-Commission, in its resolution 1998/29 requested Ms. Koufa to prepare her preliminary report for presentation at the 51st session of the Sub-Commission next year.
While the report remained unfinished at the time of the session, Ms. Koufa was able to present a statement on the relationship between human rights and terrorism, in which she highlighted several of the major contributions of her work. In this regard, Ms. Koufa stressed that modern day terrorism is an international phenomenon with both domestic and international ramifications. Further, because terrorism jeopardizes the lives of the innocent, potentially at the hands of both State and non-State agents, the international community has an obligation to intervene in these situations. At the 51st session, Ms. Koufa is scheduled to elaborate the different international mechanisms which are available to bring terrorists to justice, as well as to reiterate that States must not abuse the basic human rights of citizens in their attempts to maintain internal security.
VI. Working Groups
The Sub-Commission makes a unique contribution to the human
rights field through its working groups. These working groups
provide the possibility for a participatory study of current issues,
trends, and difficulties in thematically important areas, and
involve monitoring of human rights problems by providing a channel
for the airing of grievances. In particular, there is no other
venue in the United Nations where minority issues are being addressed
as intensively as in the Working Group on Minorities. The Working
Group on Indigenous Populations has also made important strides
in previously drafting a proposed declaration on indigenous rights
and continuing to hear the concerns of indigenous communities
from around the world. The other working groups, too, help maintain
the Sub-Commission's distinct role in protecting and promoting
Each working group is composed of one expert from each of the five geographic regions. All of the working groups -- with the exception of the Working Group on Communications is open to participation by observers. Consequently, they have become important fora for specialist agencies and organizations to participate in a discussion of a particular subject. In addition, expert participation in working groups allows Sub-Commission members to focus on a particular area of interest or expertise. Further, the working groups allow for reports of human rights violations and give governments the chance to respond.
The working groups compile a report of their respective sessions, to submit to the Sub-Commission's plenary session. In addition, working groups may place proposals before the Sub-Commission to take action with respect to a particular issue. As such, the working groups can influence the agenda and the performance of the Sub-Commission.
A number of proposed reforms given particular attention by the Bureau of the Commission could, if adopted, have a substantial impact on the working groups of the Sub-Commission. These reforms would remove two of the working groups from the Sub-Commission and place their duties within existing institutions.
A. Working Group on Minorities
In 1998 the Working Group on Minorities convened for its fourth session from 25 to 29 May 1998. This Working Group is a subsidiary of the Sub-Commission and the Commission and was authorized by the Commission on Human Rights in its resolution 1995/24 of 3 March 1995, and endorsed by the Economic and Social Council in its resolution 1995/31 of 25 July 1995. This working group's mandate is to:
promote the rights of persons belonging to national or ethnic, religious and linguistic minorities, as set out in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities and to examine possible solutions to problems involving minorities, including the promotion of mutual understanding between and among minorities and Governments
There is no other place where issues relating to minorities are addressed as intensively and constructively as the Working Group on Minorities. It has taken topic-by-topic approach, focusing on matters such as intercultural and multicultural education for minorities, the role of the media in regard to minorities, and generally on constructive ways to handle situations involving minorities. Its agenda for the coming years includes language rights and ways and means to involve minorities in the planning and implementation of national policies. During its first meeting, the working group re-elected Mr. Eide as Chairman-Rapporteur for a two-year term. Throughout the session the working group was attended by representatives from 37 different governments, 6 UN specialized agencies and intergovernmental organizations, and close to 100 non-governmental organizations.
As one of its primary efforts, the working group reviewed the promotion and practical realization of the Declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities. Mr. Eide presented his commentary to the Declaration, the aims of which he viewed as contributing to the "realization of the principles of the United Nations including peace, territorial integrity, cooperation, the solution of common problems and the realization of international human rights instruments at the universal and regional levels." His commentary highlighted the importance of the provisions laid out in article 1 of the Declaration, specifically understanding that recognition and respect for the rights of minorities necessitates national policies of non-exclusion, non-assimilation, and non-discrimination. According to article 1 of the Declaration, not only is the existence and identity of persons belonging to minorities to be protected, but also the State is under special obligation to encourage and promote the social conditions in which these identities are maintained and preserved. Mr. Eide noted that his understanding of State obligations and minority rights "reflected respect for pluralism and diversity in national societies while at the same time maintaining the identity and characteristics of minorities." Other members, however, also emphasized the need to incorporate further dialogue and commentary on the Declaration so as to ensure its ultimate, effective implementation.
In addition to these comments, the working group also considered the constitutional and legal provisions protecting the existence and identities of minorities as elaborated in article 1.1 of the Declaration. It was noted, however, that one fundamental problem in the discussion was the conceptual ambiguity over defining the existence of a minority population. Official non-recognition of minority groups is problematic because States may simply refuse to acknowledge the existence of particular groups, thereby effectively nullifying any obligation that the State may have in protecting the rights of such a minority. Mr. Bengoa noted that "it was not sufficient for minorities to be allowed' to exercise their rights; they should also be able to assert' their rights." Being able to "assert" their rights, means that minority groups must be granted the legitimate avenues through which to make claims relating specifically to the rights of minorities. As such, an independent definition must be developed so as to recognize the existence of minority groups, even if they are not granted this visibility by States.
The working group also considered, in keeping with articles 2.1 and 3 of the Declaration, the rights of persons belonging to minorities to, individually or in community, enjoy their own culture, profess and practice their own religion, and use their own language, both in private and in public. Further, the working group considered the rights of minorities to participate in the cultural, religious, social, economic and public life of their communities, and also to participate in decision-making processes at both the national and regional levels. In order to ensure meaningful participation in the society, however, the rights of minority groups should be acknowledged in an environment which promotes tolerance, peace and cooperation. In promoting this climate of tolerance, human rights education was discussed as playing a critical role. The right to education was discussed within the framework of minority rights, including the right to intercultural education, and the right of minorities to learn their native language.
The working group explored the potential use of UN treaty bodies in promoting the rights of minorities. The role of the Human Rights Committee, the Committee on the Rights of the Child, and the Committee on the Elimination of racial Discrimination were therein discussed. Again, it was noted that, with specific regard to the work of the treaty monitoring bodies, a definition of what constitutes a minority population would be helpful to facilitate the work of these committees. In addition, the working group also examined the contributions to be made by United Nations Special Rapporteurs, United Nations specialized agencies, and other inter-governmental or non-governmental organizations.
The working group has been able to address a variety of serious concerns relating to minority rights, and has helped to identify some of the major issues and obstacles facing minority populations. The future of the working group was, however, potentially in question. The Bureau of the Commission reportedly considered a proposal to abolish the Sub-Commission's Working Group on Minorities and place its existing duties within the context of a working group of the Commission. Nonetheless, while the Bureau did make recommendations as to other Sub-Commission working groups, the Bureau recommended in its report to the Commission the continuation of the Working Group on Minorities.
B. Working Group on Indigenous Populations
The Working Group on Indigenous Populations has made a decisive contribution by drafting the Declaration on the Rights of Indigenous Peoples. In recent years the Working Group has focused on issues relating to indigenous education, language, and health. This Working Group also plays an important role in reviewing developments related to the situation of indigenous communities throughout the world, providing a unique forum for indigenous peoples from all over the world to assemble in Geneva, exchange experiences, engage in a dialogue with their respective governments, and develop common proposals addressed to the UN system.
In 1998 the Working Group on Indigenous Population convened for its sixteenth session from Monday, July 27 through Friday, July 31. This working group's mandate is to:
review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations, together with information requested annually by the Secretary-General, and to give special attention to the evolution of standards concerning the rights of indigenous populations
The sixteenth session of the Working Group had a record attendance of nearly 1,000 persons, including 19 observer governments, 9 United Nations and inter-governmental organizations; and 312 indigenous nations, organizations, and communities.
The Working Group reviewed developments under its Agenda Item 4, which authorizes it to "review developments pertaining to the promotion and protection of human rights and fundamental freedoms of indigenous populations." Such review provides invaluable information to members of the Working Group and comments under this agenda item are considered by them in strengthening ongoing efforts of the UN system to recognize, promote, protect, and restore the rights of indigenous peoples. It must be noted, however, that the Working Group does not want to be a "chamber of complaints" and does not act upon specific allegations concerning violations of human rights.
Many governments and NGOs have used Agenda Item 4 as an opportunity to report on efforts to promote and protect the human rights of indigenous populations, focusing particularly on this year's principle theme of education and language. Many NGOs, however, used Agenda Item 4 as an opportunity to lodge complaints against various government actors. The Chairperson repeatedly reminded speakers that the Working Group was not the proper forum for such complaints, but her warning appeared to go unheeded.
The principal theme of this year's session was: Indigenous
Peoples - Education and Language. In conjunction with the central
theme, the Working Group considered the Draft Declaration on the
Rights of Indigenous Peoples, which it completed at its eleventh
session in 1994. Many participants of the Working Group called
for a quick approval of the draft Declaration on the Rights of
Indigenous Peoples, which is presently under consideration by
an open-ended Working Group of the Commission. The participants
stressed to the Sub-Commission's Working Group that the language
of the draft should not be subjected to any more changes that
would weaken the document, as it already constituted a minimum
standard with respect to the protection of indigenous rights.
The Working Group also considered the establishment of a permanent
forum for indigenous people, a development which will be discussed
later in this section.
Other highlights of this year's session included the presentation of Prof. Alfonso Martínez's (expert from Cuba) 'Study on Treaties, Agreements, and Other Constructive Arrangements between States and Indigenous Populations' and Dr. Daes' 'Preliminary Working Paper on Indigenous Peoples and Their Relationship to Land.'
The Commission is currently considering the establishment of a Permanent Forum for Indigenous People. If established, the Commission is seriously considering abolishing the Sub-Commission's Working Group on Indigenous Population. There is much debate over whether the Permanent Forum will replace all of the present functions of the Working Group. Of particular concern for organizations representing indigenous interests is whether NGOs will have direct access to the Permanent Forum. Such direct access has been one of the unique and beneficial characteristics of the Working Group. Furthermore, some governments have not supported equal participation by indigenous representatives. One government delegation to the second workshop on a permanent forum stated that "it could not support a forum within the United Nations system where indigenous peoples were granted the same legal status as member States."
Prof. Alfonso Martínez, member of the Working Group on Indigenous Populations and Special Rapporteur, presented his study on Treaties, Agreements, and Other Constructive Arrangements between States and Indigenous Populations to the Working Group on Indigenous Populations. Prof. Alfonso Martínez's study was generally well received. It was, however, not without criticism. Judge Guissé, another member of the Working Group, commented that the study was not complete and that it raised many important questions but lacked many answers. In particular, Judge Guissé was critical of the study's exclusion of indigenous populations from Africa and Asia. Judge Guissé's comment received applause from NGOs representing African and Asian indigenous interests.
Prof. Alfonso Martínez's study was not forwarded to the Secretariat in time for translations into all of the working languages and thus was not available in official form during the Working Group's session. This delay received a great amount of criticism, particularly because the reason for the delay was that the study was not yet translated into Spanish. A number of Spanish speaking NGOs were particularly insulted by this fact.
This study also contained several controversial conclusions and recommendations, including the conclusion that the "treaty of annexation between the United States and Hawaii . . . could be declared invalid" and the recommendation that the "case of Hawaii [be] re-entered on the list of non-self-government territories of the UN and resubmitted to the bodies in the Organization competent in the field of decolonisation." The US government responded to an omission in the study by pointing out that the General Assembly, in resolution 14/69 of 12 December 1959, found that the "people of Hawaii exercised their right to self-determination and freely chose statehood." Prof. Alfonso Martínez responded that he would include, with his own comments, the US government response.
C. Working Group on Contemporary Forms of Slavery
The Working Group on Contemporary Forms of Slavery is the only mechanism in the UN system for monitoring compliance with several multilateral human rights treaties relating to slavery and slavery-like practices. This Working Group took the initiative in developing programs of action against the sale of children, child prostitution, and child pornography; on child labor; and on prevention of the traffic in person and the exploitation of the prostitution of others.
In 1998, the Working Group on Contemporary Forms of Slavery
convened for its twenty-third session from 18 to 28 May 1998.
The Working Group is a subsidiary of the Sub-Commission and Commission
and was established pursuant to Economic and Social Council Economic
and Social Council decisions 16 (LVI) and 17 (LVI) of 17 May 1974.
The Working Group was established in 1975 and has met regularly
before each session of the Sub-Commission. This working group's
mandate is to:
review developments in the field of slavery, the slave trade and the slavery-like practices, of apartheid and colonialism, the traffic in persons and the exploitation of the prostitution of others, as defined in the Slavery Convention of 1926, the Supplementary Convention of 1956 on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, and the Convention of 1949 for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.
During this year's session, the Working Group also accepted an NGO proposal for a forum on prostitution and trafficking in women and children which is scheduled to take place on June 21-22, 1999, just before the working group meets between June 23-July 2, 1999. This forum will represent a joint effort by United Nations organizations and non-governmental organizations, who are expected to voice a range of perspectives on the issue of sexual trafficking. While there are some international instruments which address the issue of sexual trafficking, most notably the 1959 Convention on Trafficking in Persons, there have nevertheless been virtually no concrete enforcement mechanisms available which would actually help deter the practice. Many of these organizations will no doubt present different, and perhaps at times contrary, viewpoints on the issue of prostitution. The aim of the forum, however, will be to incorporate these divergent perspectives into a common set of objectives against the most severe abuses inherent in sexual trafficking. Presumably, participants can agree upon the most grievous violations such as abduction, fraud, illicit transfer, and sexual bondage so that progress can be made in these areas.
This session, the Working Group took the initial steps towards a consolidation of conventions on slavery; reviewed, inter alia, developments in the field of contemporary forms of slavery, including economic exploitation of domestic and migrant workers, bonded labor, child labor, and sexual exploitation; and recommended a number of resolutions to the Sub-Commission.
The Working Group recalled the large number of international instruments relating to slavery. The Working Group continued to receive information about and be aware of the contemporary manifestations of slavery-like practices, including debt bondage, exploitation of child labor, forced labor, illicit traffic in migrant workers, and traffic in women and children for prostitution. The Working Group asked David Weissbrodt and Anti-Slavery International, in consultation with non-governmental organization having an established record in this field, to prepare a comprehensive review of existing treaty and customary law covering all the traditional and contemporary slavery-related practices and relevant monitoring mechanisms. The end product will be a restatement of international norms against slavery, principle by principle, and would thus assess whether there are gaps in the legal norms against slavery. The working paper should also review the mechanisms established by existing instruments and any apparent gaps in monitoring.
The Bureau of the Commission has proposed abolishing the Sub-Commission's Working Group on Contemporary Forms of Slavery and assigning its functions to a Special Rapporteur on contemporary forms of slavery within the context of the Commission on Human Rights who may also be given responsibility for the work of the existing Special Rapporteur on the sale of children, child prostitution and child pornography.
D. Sessional Working Group on Administration of Justice
The Working Group on Administration of Justice met periodically throughout the Sub-Commission session to discuss issues related to deprivation of the right to life, habeas corpus as a non-derogable right and as one of the requirements for the right to a fair trial, measures to be taken to give full effect to the Convention on the Prevention and Punishment of the Crime of Genocide, juvenile justice, privatization of prisons, and the Draft Convention on the Protection of All Persons From Enforced Disappearances.
As one of its primary tasks, the Working Group addressed the issue of the death penalty, and took note of the worldwide abolitionist movement which has sought to eliminate the practice. The Working Group agreed that, while some progress has been made towards the universal eradication of the death penalty, unfortunately much work remains to be done. To date, ninety-seven countries not only legally allow the death penalty as a method of punishment, but also regularly apply it in practice. The Sub-Commission, drawing on the work of Amnesty International, did voice some optimism by reporting that in total:
Fifty-four countries have abolished the death penalty by legal enactment for all offenses regardless of their gravity or complexion or when they were committed. De jure abolition means that the penalty cannot be pronounced, or at the very least cannot be executed. If it is reintroduced, the measures ordering its reintroduction can in no event have retroactive effect for prior acts.
The Working Group also expressed its concern over the unequal administration of the death penalty, and noted that "[t]he largest number of persons sentenced to death are those who have no resources and are thus materially and intellectually incapable of defending themselves. In many countries their cases are lost in advance." In this regard, the Working Group suggested that measures be implemented which guarantee the fair trial of accused persons, and that these individuals be provided with the legal and material resources necessary to provide for their defense. In addition, the Working Group voiced its concern for especially vulnerable groups, including minors, pregnant women and mothers of young children, the elderly, and the mentally ill and mentally disabled, who may be executed without consideration of their unique circumstances.
Perhaps the most formidable work of this year's session came, however, during the Working Group's consideration of the Draft Convention on the Protection of All Persons from Enforced Disappearances. During the 1998 session, Chairman-Rapporteur Louis Joinet submitted a revised version of the Convention, and after some debate concerning the text of the document, the Working Group was able to agree to send the draft Convention to the full Sub-Commission for its approval. The Sub-Commission was then able, in its resolution 1998/25, to approve the draft Convention, and decided to transmit the document to the Commission for its consideration, together with the comments of the Working Group and the Sub-Commission.
If approved by the Commission, the draft Convention will be sent on to the General Assembly for its consideration. Ultimately, if the draft Convention succeeds and is approved by all the relevant United Nations bodies, the new Convention will be opened for signing and ratification by member states. Thereafter, a new treaty monitoring body, the Committee against Enforced Disappearances, will be created to monitor state compliance with the Convention.
E. Working Group on Communications
During this year's session, the Sub-Commission received the report of its Working Group on Communications. According to the International Service for Human Rights, a Geneva-based NGO, the Sub-Commission decided to trasmit to the Commission on Human Rights reports concerning Afghanistank, Armenia, Azerbaijan, Gambie, Nepal, Saudi Arabia, Chad, and Yemen.
VII. Future of the Sub-Commission
The future role of the Sub-Commission is in serious question. The Bureau of the Commission has proposed to reduce the membership of the Sub-Commission to 15 individuals selected by the Chair of the Commission, rather than by election in the entire Commission, for no longer than two four-year terms and thus to reduce significantly the geographical representativeness of Sub-Commission membership. The Bureau has recommended that the Sub-Commission should be deprived of the authority to adopt resolutions. The Sub-Commission would be authorized to continue holding its open debate on country situations, but instead of resolutions expressing concerns about specific countries, it would only be requested to summarize the debate in its report. Accordingly, the Sub-Commission would apparently not be able to apply human rights issues to concrete situations and would thus be deprived of one of its most important functions. Similarly, the Sub-Commission would have no role in the confidential 1503 process for dealing with consistent patterns of gross violations; its Working Group on Communications under ECOSOC res. 1503 would be replaced by a working group under the aegis of the Commission,. At the same time, however, the Bureau would reduce the length of the sessions from four to two weeks and thus diminish drastically its capacity to have any substantive debates, summarize those controversial discussions, or do other useful work. Such limits will likely discourage NGOs from participating in Sub-Commission sessions and thus make the Sub-Commission much less visible and useful. One of the principal strengths of the Sub-Commission has been its accessibility to NGOs and their initiatives. It is likely that NGOs would lose interest in the Sub-Commission as restructured by the proposals of the Commission's Bureau.
The Sub-Commission's Working Group on Contemporary Forms of Slavery would be replaced by a Special Rapporteur of the Commission. Two other working groups (on indigenous populations and minorities) would remain (at least for now). The Sub-Commission would principally or only do studies. All of these changes would come into effect in 2000, but there is considerable uncertainty as to how transitions will affect its work in 1999. Most of the proposals considered by the Bureau of the Commission, if adopted, will diminish substantially the role currently played by one of the few independent human rights bodies within the United Nations. The Bureau did sensibly recommend that the outmoded name of the Sub-Commission be updated to "the Sub-Commission on the Promotion and Protection of Human Rights," but it simultaneously urged that the Sub-Commission be deprived of most of its role in protecting human rights.
The Sub-Commission will meet for its 51st session from 2 - 27 August 1999, but, as one member stated: "When we come back next year this may be a very different institution from the one we know."