Human Rights Council
29 May 2013
The Human Rights Council this afternoon continued its interactive dialogue with the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights, and with the Special Rapporteur on the independence of judges and lawyers.
In the general discussion, concerning the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, speakers said that the human rights consequences of foreign debt could threaten democratic values and the security of States and compromise the development of economic, social and cultural rights. In order to reduce the vulnerability of countries it was necessary to restructure the global financial system, which should become more transparent and equitable through international cooperation.
With regards to the independence of judges and lawyers, speakers noted that access to legal aid constituted an essential procedural guarantee for the effective exercise of numerous human rights. Legal aid should be available to all who needed it, including refugees and migrants. Initiatives regarding the strengthening of legal assistance should bear in mind the specific context of each country. Concern was expressed about increased attacks, intimidation and threats against judges, lawyers and prosecutors.
The Council heard the presentation of the reports by the two experts on Tuesday, 28 May in the afternoon, and a summary of the presentations can be found in HRC/13/57.
Speaking in the general discussion were Cuba, European Union, Gabon on behalf of the African Group, Argentina, Pakistan on behalf of the Organization for Islamic Cooperation, Algeria on behalf of the Arab Group, Morocco, Ecuador on behalf of the Group of Latin American and Caribbean States, Belarus, Brazil, Russia, Thailand, Australia, Nicaragua, United States of America, Egypt, Sri Lanka, Costa Rica, Estonia, Bostwana, Saudi Arabia, China, South Africa, Burkina Faso, Indonesia, Lebanon, Algeria, Venezuela, Bulgaria and Libya.
Latvia, El Salvador, Pakistan and Maldives spoke as concerned countries.
Iraq and Cuba spoke in a right of reply.
The Human Rights Council will resume its work at 9 a.m. on Thursday, 30 May, to continue its interactive dialogue with the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights, and with the Special Rapporteur on the independence of judges and lawyers. It will then hold an interactive dialogue with the Special Rapporteurs on extrajudicial, summary or arbitrary executions, and on the human rights of internally displaced persons.
Statements by Concerned Countries
Latvia, speaking as a concerned country, said it highly valued the work of United Nations Special Procedure mandate holders. Latvia hosted the visit of the Independent Expert and encouraged other States to extend such courtesies with the United Nations system. In recent years Latvia had taken strict economic measures including cuts in the health budget but not at the high rate mentioned in the Independent Expert’s report. Pension cuts were not related to austerity measures. Latvia strongly objected to the suggestion in the report that the present-day Latvian State was a successor State of the USSR. It wished to state that its structural reforms were not linked to minority profiling and it remained committed to a human rights agenda.
El Salvador, speaking as a concerned country, said that its judiciary played a significant role in defending human rights and it was independent. It was noteworthy that constitutional reforms were begun after the signing of peace agreements in El Salvador and among these were judicial reforms. The Supreme Court was a body elected by the Assembly in accordance with a judgement by the Central American Court. El Salvador upheld participation in international human rights bodies and the work of Special Rapporteurs, with the caveat that the reports by the Special Rapporteurs not be made available to the media before they were submitted to the Council. El Salvador was surprised at the strength of criticism levelled at its judiciary, which was circulated before it was submitted, and felt this had left it defenceless in terms of its right to reply.
Pakistan, speaking as a concerned country, thanked the Special Rapporteur on the independence of judges and lawyers for the visit paid and report submitted. Pakistan had strengthened the system of judicial appointments, which was merit-based, and the salary structure had been strengthened with judges being the highest paid civil servants in Pakistan. Islamic law was a fundamental part of Pakistan’s law and it was codified over 400 years. There were no competing interests between Islamic law and human rights. A dual layer of constitutional protections was in place. Blasphemy laws existed all over the world and were not religiously selective. The report of the Special Rapporteur did not always take these factors into account.
Maldives, speaking as a concerned country, welcomed the report of the Special Rapporteur on the independence of judges and lawyers and fully acknowledged the challenges identified and raised in her report. The judicial system of the Maldives continued to be hampered by structural deficiencies and resource constraints in addressing these challenges. The Maldives requested assistance and technical expertise from the Office of the High Commissioner for Human Rights and continued engagement of the Special Rapporteur to realize the implementation of the recommendations.
Cuba noted the comprehensive analysis by the Special Rapporteur on the independence of judges and lawyers on the elements that may strengthen legal assistance. Initiatives in this regard had to bear in mind the specific contexts of each country. It was also important to bear in mind international conventions as set out in the report. It was unlikely that international debt relief mechanisms could result in lasting solutions to the issue of extreme poverty. Cuba would table a resolution on human rights and foreign debt.
European Union said that it fully shared the assessment that access to legal aid constituted an essential procedural guarantee for effective exercise of numerous human rights. It was concerned about increasing attacks, intimidation and threats against judgers, lawyers and prosecutors, including those dealing with alleged human rights violations. What were the main reasons behind the increased number of these attacks and what were the most pressing legal and administrative changes needed to strengthen the independence of the judiciary worldwide?
Gabon, speaking on behalf of the African Group, said the human rights consequences of foreign debt could threaten democratic values and security of States and compromise the development of economic, social and cultural rights. The African Group fully supported the mandate of the Independent Expert and urged him to find significant, concrete and binding responses to help the developing countries that were victims of fraudulent transactions to fully enjoy economic, social and cultural rights as well as the right to development.
Argentina said that to strengthen its judicial system it recently launched a package of six draft laws, which included reforms of the magistrature and other reforms based on pragmatic principles, participation and popular monitoring to ensure greater transparency. The Special Rapporteur on the independence of judges contacted Argentina with an urgent appeal petition regarding two of those draft laws. Argentina believed that was an abusive use of an urgent appeal, as the urgent appeal system was only supposed to be used if the lives of persons were at risk.
Pakistan, speaking on behalf of the Organization of Islamic Cooperation, said it believed that the legal aid system should be developed, with a mechanism to avoid misuse of legal aid, and it would appreciate the Special Rapporteur’s guidance on that. Debt relief initiatives had not reduced the vulnerability of heavily indebted countries. The Organization agreed with Independent Expert that major reforms in the international financial system were inevitable and that great transparency was needed.
Algeria, speaking on behalf of the Arab Group, thanked the Independent Expert for his report, which dealt with an important issue facing developing countries. Foreign debt had pushed countries which were unable to bear the burden of their debts to foreign borrowing. As a result, their commitment to the social and economic rights of their citizens had been severely compromised. It was important therefore to deal with the root causes of the foreign debt problem and to establish a fair and just economic order.
Morocco said that most of the countries of the South were unable to cope with the international financial system and that existing imbalances and disparities had to be rectified. Morocco supported the recommendations of the Independent Expert concerning the heavily indebted countries. Regarding the independence of judges and lawyers, Morocco shared the findings of the Special Rapporteur on that matter and said that access to free legal assistance should be guaranteed by the legal system of all States.
Ecuador, speaking on behalf of the Group of Latin American and Caribbean Countries, said that in order to reduce the vulnerability of countries it was necessary to restructure the global financial system, which should become more transparent and equitable through international cooperation. The issue of the repayment of foreign debt should be addressed so that it did not affect the national development of poor countries. Concerning legal assistance, it was imperative to remove all obstacles to access to justice based on the social and economic status of persons.
Belarus drew attention to the prosecution of Julian Assange. Belarus was concerned that the authorities of Sweden had issued an arrest warrant without providing any charges. The United Kingdom decided to extradite him to Sweden while ignoring its own legislation. The situation was setting a dangerous precedent where any citizen could be extradited without any charges and without taking into account any evidence. Had the Special Rapporteur been following this case and had she made any enquiries under her mandate to clarify the situation?
Brazil said that access to justice to those that could not afford it was an important issue. In Brazil, the Public Defender’s Office covered assistance in court and counseling on individuals rights in the non-judicial sphere and it was a completely independent organ. The main challenge now to universalize the service was to reach all 26 Brazilian states. The Government was aware that public defenders were over-demanded and short handed and a mapping exercise was underway to identify existing public defenders.
Russia stressed that the report of the Special Rapporteur did not stress the need to ensure the functioning of mechanisms of legal aid under a single judicial system. When justice was rendered selectively, it was very difficult for persons to receive legal aid. To what extent was it possible to determine a category of lawyers? Were there clear criteria to assign a lawyer to a category and if so what were these? The Special Rapporteur should fully take into account the Human Rights Council resolution on the integrity of the judicial system.
Thailand took note of the Special Rapporteur’s emphasis on the need to provide legal aid both for those lacking knowledge of their rights before the law and those unable to pay for legal assistance. The Department of Legal Aid in Thailand provided legal counsel to individuals, in both criminal and civil cases. It agreed that States held primary responsibility to build an effective legal aid system but would welcome technical assistance.
Australia said their approach focused on the access to justice principles of accessibility, appropriateness, effectiveness and efficiency. Australia agreed with the Special Rapporteur’s broad definition of legal aid. Consistent with that, it provided advice, assistance and early measures. In addition to taking action at a national level, Australia worked with regional countries to help them establish a legal aid system, as well as with the World Bank on the same subject.
Nicaragua placed on record an objection to paragraphs 66 to 68 in the Special Rapporteur’s report on the sub-regional consultation held in Panama in 2012. The content of those paragraphs was not only removed from the reality of the justice system in Nicaragua but also ran counter to Nicaragua’s efforts to reform, modernise and strengthen its judicial system, particularly judicial independence. Additionally, it objected that there was no request for the judiciary to submit an official position to the Special Rapporteur; if such a request had been made Nicaragua would have fully cooperated with the Special Rapporteur in order to avoid such errors.
United States said legal aid was an important measure that States could enact to prevent access to the law becoming the preserve of an elite. Comprehensive legal aid legislation in civil cases as it was provided for in the United States was recommended. What did the Special Rapporteur consider to be the major barriers to States enacting legal aid provisions?
Egypt said international human rights law was not ambiguous on the matter of the provision of free legal aid services and the new Egyptian Constitution reflected this. Egypt was of the view that States had to conform to international human rights law in this respect. It attached particular importance to good practices in this matter. Turning to debt relief, Egypt agreed with the Independent Expert and said the matter was all the more important in the context of the international economic crisis.
Sri Lanka said it had enacted a legal aid service, the funding of which had increased over the years, and agreed with the spirit of the Special Rapporteur’s thoughts on the matter. In Sri Lanka there was a strong legal basis in both legislation and institutions for legal aid provision. It upheld the right to a fair trial and other legal representation rights and its Supreme Court could rule on the denial of such rights whether or not it was petitioned to do so.
Costa Rica said the Special Rapporteur on the independence of judges and lawyers made very salient and relevant recommendations, especially on the provision of legal aid. In Costa Rica the judiciary, through the Ombudsman and other bodies, had programmes tasked with providing free of charge legal aid to those who needed it. It was difficult to provide legal aid to everyone who needed it because of limited economic resources but Costa Rica was endeavouring to reach all.
Estonia said in today’s world they should strive to avoid a position where a person’s financial position placed them in a position of inequality before the law. In Estonia a 2004 law provided for free legal aid, and almost 20,000 persons – two per cent of the population – benefitted every year. State legal aid was financed from the State legal budget, and funds had increased annually, amounting to €4 million in 2012.
Botswana said legal aid in Botswana was still a pilot project. Botswana recently engaged a consultant to assist it in developing a legal aid system. Botswana agreed that access to legal aid must be available to all individuals within the State’s jurisdiction. However developing countries such as Botswana faced many challenges to providing comprehensive legal aid, especially given limited economic resources, so for now, legal aid was only provided to non-citizens and refugees for the most serious cases, such as murder.
Saudi Arabia said that it agreed with the point raised by the Independent Expert in his report that concerted effort was needed in order to implement the three initiatives mentioned and to find strategic solutions. Some developing countries remained heavily indebted, which meant that further efforts were needed and in that respect the reports by experts were invaluable. Saudi Arabia was providing several billions worth of financial help to indebted developing countries.
China agreed with the Independent Expert that a human rights based strategy needed to be formulated and that countries should work together to resolve problems stemming from heavy debts. The burden of excessive debt repayment was affecting negatively the enjoyment of human rights by people in developing countries. China had exempted several billions of foreign debt owed to it by developing countries and had also granted loans to developing countries with low interest or no interest at all.
South Africa said that it shared the concerns raised by the Independent Expert regarding the conditionalities imposed on the countries which had received foreign debt relief, which had had an adverse impact on the enjoyment of human rights by their populations. Further efforts were needed at the international level in order to address the debt crisis in a coordinated and effective manner. It was crucial to take measures to ensure fair competition in international trade in the developing world.
Burkina Faso thanked the Special Rapporteur for her report but noted that access to free legal aid was at the mercy of budgetary limitations. However, Burkina Faso supported the need for a legislative framework for legal aid, especially for women and children. Burkina Faso upheld the principle of access to justice for all.
Indonesia noted the Independent Expert’s report on debt relief and shared the view that often too much focus was paid to relief as opposed to the underlying causes of debt. Turning to the report of the Special Rapporteur, Indonesia said that its constitution provided firm guarantees for the right to a fair trial and certain provisions for legal aid had recently been enacted. It had plans for further action and worked with civil society in the area of providing legal services.
Lebanon welcomed the Independent Expert’s report and agreed with its conclusions as regard to the dominant role of creditor States in the debtor-creditor relationship. Member States had to respect good governance and human rights norms. Lebanon posed the question to the Independent Expert: was political will alone sufficient to enable the enactment of his recommendations?
Algeria said that it shared the view that legal aid was an essential component of any system of justice that was fair and effective and based on the rule of law. Algeria’s law on legal aid had been modified to extend legal aid and facilitate access to it by less privileged persons. Algeria was of the view that economic conditionalities were problematic and that these should be rethought through genuine partnerships between all the relevant actors.
Venezuela said that the burden of foreign debt, worsened by the global financial countries, put developed and especially least developed countries at risk. States had to assume and share responsibilities to resolve situations of unsustainable debt. It regretted having to voice its concern about misconduct by the Special Procedures regarding press releases and noted that that compromised the impartiality and equity that should always accompany the Special Procedures.
Bulgaria said that according to its new draft law on the Judiciary System Act, changes provided for would bring about the maximum degree of transparency of the judicial system. One of the several changes to the Act affected the regulation of assessment and promotion of judges. Furthermore, a new Criminal Code was being prepared based on expert advice from the European Union and the Council of Europe.
Libya said that the independence of judges and lawyers greatly contributed to the smooth function of justice and guaranteed human rights. Libya was currently working to guarantee the drafting of a national constitution which took into account the independence of judges and lawyers. Libya agreed with the Special Rapporteur about the importance of legal aid, which was fundamental for the full enjoyment of a number of human rights, including the right to a fair trial.
Right of Reply
Iraq, speaking in a right of reply with respect to yesterday’s report of the Special Rapporteur on the right to health, said that non-governmental organizations had published fallacies about the health situation in the Liberty Camp. Iraq had published a memorandum on this. There was a United Nations office in the camp and they could check the situation on the ground. The contribution of the non-governmental organizations was overly politicized.
Cuba, speaking in a right of reply, said that Cuba rejected the allegations of the United States in its contribution to the discussion of the Independent Expert’s report. Everyone knew that Cuba had one of the most independent justice systems in the world and it had held an inquiry into the tragic events referred to by the United States and those responsible were being pursued.
For use of the information media; not an official record