Berlin, 6 October 2016
I'm glad to be here among so many thoughtful voices for better human rights protection across the globe.
We are here to commemorate the 50th anniversary of the human rights Covenants. There is no doubt that these treaties have helped to extend the realization of rights for people across the globe, as many of the speakers today have emphasised. They have taught us to respect the growing diversity of our societies, and they have sustained the force of grassroots activism. The work of the Human Rights Committee and the Committee on Economic, Social and Cultural Rights has clarified the obligations of States, advanced implementation of the Covenants and given many the opportunity to receive remedy for violations.
But these treaties, and the profound and essential principles which they uphold, are constantly being challenged. Since I have this opportunity to speak in Germany, I want to emphasise very strongly my appreciation for the principled and steadfast approach taken by Chancellor Angela Merkel towards the hundreds of thousands of migrants who have sought shelter here in the past 18 months. Few, if any European leaders have demonstrated such a clear-sighted understanding of human rights law. Still, even here, the voices of hate, suspicion and discrimination have been raised. And I see this year as far more than just a symbolic anniversary. To me it is a call to action – to spearhead a new effort to understand and embody the Covenants.
Certainly the world stands at the intersection of some very contradictory trends. This may be a pivotal moment in world history. On the one hand, millions of people – including many groups previously subjected to crushing discrimination – are benefiting from progress in human rights, including unprecedented prosperity, measures that recognise and celebrate equal rights, and profound improvements in governance and rule of law. The 2030 Agenda for Sustainable Development offers us real hope for a hugely accelerated push towards respect for human rights across the world, with profound efforts to diminish the inequalities which obliterate opportunities and freedom for so many people.
But at the same time, we are experiencing a deepening trend of communities barricading themselves into hostile camps . A drastically simplified world, bristling with fear and suspicion, with sharply defined, walled groupings and firmly identified enemies. This trend is deeply disturbing.
In a context where the fragile sense of "us" is under such intense pressure, it is not enough for a group of people such as ourselves to come together to celebrate the achievements of the Covenants. We cannot just sleepwalk on in self-congratulation, as the winds of grievance and waves of hatred are whipped up to dangerous heights. It is time for us to discuss how best we can act in strong, concerted defence of human rights principles – now, before those principles are eroded to the point where they give way.
My overall concern regarding the future of the Covenants is how we can ensure better implementation on the ground. I am nagged by a sense that a formalized ballet of international diplomacy requires various Excellencies to bow and nod to international conventions, in a ritual that is often utterly divorced from the real world.
The Covenants need to be applied. Of course they need to be translated into applicable law. But work must be done to ensure those laws – in letter and spirit – are respected, and incorporated into the cultural and social fabric.
Commitments to ending torture and ill-treatment are a fine thing; but do they mean that all prison personnel understand that abusing detainees is unacceptable; do they mean that society recognises that domestic violence must be punished? The right to adequate health-care cannot be just a slogan – healthcare systems must be adjusted to ensure that they really are accessible and affordable, without discrimination.
As academics, policy-makers and members of national human rights commissions, many of you are in a position to analyse the obstacles between law and practice – what forces are impeding follow-through, and how we can improve. So I want to lay out here some of the specific areas where I think we could benefit from your contributions.
Freedom from fear
The first challenge is in the security sphere: how can we ensure a credible human rights response to the
global insecurity and instability created by armed groups and violent extremism. As people look to their governments for protection from violence and terrorism, fear sometimes appears to eclipse sanity. How can human rights influence policy so that we preserve our freedoms and our safety?
Adopting policies that place security ahead of human rights has frequently led to intrusions on freedoms, an "us versus them" mentality, and measures suggestive of racial or religious discrimination. I do not believe such policies can make people safer and they have clearly marginalized and alienated communities. How do we counter such policies? How can we fight the false but deeply anchored perception that human rights principles give extremist groups space to operate? At a more technical level, should we encourage states to apply the detailed provisions that allow for derogations from the full scope of certain rights in times of emergency?
On the other side of the equation, violent extremism is gaining ground among some troubled or alienated youth, with messages that simplify the world into a narrative of pure conflict. In this narrative, the anxieties and disappointments of ordinary life are subsumed by an intense sense of agency, and the identified enemy is deemed responsible for all personal and structural failures. How do we reach out to the next generation with meaningful discussion of human rights values? How can we better understand the gendered aspects of preventing violent extremism – the differential experiences of women, men, girls and boys in this field?
We also need to look at
policing – the most visible and immediate expression of the rule, or misrule, of law in any state. In several countries, surveillance techniques are given priority over community policing, without adequate supervision or accountability, and despite the research which so clearly demonstrates the long-term effectiveness of community policing on every level. We also see police forces patrolling in full military gear, oblivious to the way this cues people to view them as an occupying army.
For genuine, long-lasting stability, it is crucial that people feel they are well-served by all their political and judicial institutions – served, and not ruled. Respect for the rule of law must come first from those who enforce it. When institutions are fair, they are seen as legitimate; when society is just, it is more cohesive. But where security and policing systems abuse their power – as a result of political manipulation, institutionalized corruption, or discrimination in their application – one massive casualty is the bond of loyalty and trust between the people and their government.
And so I ask you, in every country which you study –and zooming in to the level of individual communities – do the people feel they can trust the police? And if they do not, are their suspicions correct? Do the actions of the police and security forces abuse power and thus generate grievance? Answers to these questions could have enormous positive impact on our advocacy for better, more principled policy-making.
Freedom from want
Next I want to consider the impact of the Covenants on
poverty. The treaties recognize that food, adequate health-care, a decent education, proper housing and other essentials for life are not simply commodities or neutral policy choices: they are
rights. This raises the issue of accountability: it makes national and international actors responsible for ending deprivation.
The 2008 Optional Protocol has been an important step towards advancing legal accountability for economic, social and cultural rights. I believe it will provide an incentive to strengthen legal protection of these rights, with access to justice, remedies and guarantees of non-repetition when rights are violated.
But accountability in the fight against poverty needs to go beyond providing remedies for individuals. There is a collective nature to many aspects of the Covenants which encourages us to consider accountability in innovative ways.
We can go beyond courts and tribunals and examine other means to promote accountability – methods like human rights impact assessment of proposed policies and programmes; rights-based budgeting; and the development of indicators to demonstrate whether policies are having the desired impact on rights. We need to look at the actions of business enterprises; international financial institutions; and donors, who are not traditionally viewed as duty-bearers.
We also need to go beyond national laws and policies to examine international agreements, such as trade and investment agreements, and their impact on all human rights, including economic and social rights. This may require greater normative clarity in some areas, such as extra-territorial obligations and the concept of progressive realization.
I want to emphasize here the very positive perspective of the
2030 Agenda. With its clear recognition that development can only be real and sustainable if it is grounded in good governance, equality, and the public freedoms which enable civil society to develop and operate, the right to development runs as a clear normative thread across the entire framework of the Agenda. Its primary theme – "no one left behind" – is a clear affirmation of equality and universality. It recognizes the responsibility of the State but also of the private sector and the international community. And as we continue to strengthen the framework of accountability for implementation of the Agenda, I hope this effort will be able to count on continued contributions from the academic community.
Bigotry and discrimination
I would like now to turn to a set of very urgent concerns which share roots in a cynical stoking of hatred and fear. I am very sharply alarmed by the increasingly widespread shockwaves of
racial and religious hatred and xenophobia. Even in the world's most wealthy and serene societies, the spectre of hateful, violent prejudice has uncoiled from the small sectors where it was previously confined, and it is now raging across many societies.
To some extent, I think this poison stems from a deep crisis of confidence across many sectors of society. The apparently unstoppable forces of globalization and social changes can be frightening. Many people feel they are poorly served by their governments, political actors in general, and international institutions. Governance systems are seen as not responding to their needs and this triggers a flight into angry, polarized positions.
Whatever their cause, when racism, xenophobia and religious discrimination begin to be seen as acceptable, and hate speech becomes banal, then we have among us a force for devastating humiliation, exclusion and violence. There is an urgent need to confront the toxic narrative being advanced against
migrants by some politicians, which builds on xenophobia and fear, and scapegoats these vulnerable people for a variety of social ills, including violence, growing unemployment and weakening social services.
It has become routine to hear that recent immigrants, particularly Muslim immigrants, are impossible to assimilate, maintain higher reproductive rates for decades after their arrival, are not loyal to their host societies, view their religion as a political ideology, and intend to destroy the traditions and freedoms of Europe. Each of these myths about integration is demonstrably untrue, as Doug Sanders' book
The Myth of the Muslim Tide makes very clear. That book is four years old now, but it makes a very strong, factual case, and I would welcome much more of this kind of fact-based analysis of integration and immigration by the academics in this audience.
I also very much look forward to hearing more from national human rights institutions and ombudsman bodies in this context. They have a tremendously important role to play in protecting people from human rights abuses and violations. This kind of influence is key to establishing a moral compass of principle, and a detailed overview of practise, to contribute to strengthening a much more positive public narrative on migration.
I am eager to discuss with you how we can advance respect for migrants' human rights. The Secretary-General has suggested developing a global compact on migration, and we are working on a set of human rights guidelines to underpin that effort. It must be clear that all migrants have the right to be free of discrimination, violence or arbitrary detention. Every person has the right to liberty, and detention is deeply damaging, particularly for children; it is never in the best interests of a child to be locked up. Every migrant has a right to individual determination of their circumstances, and nobody should ever be returned to a place where they face torture or other grave human rights violations. Reasonable accommodation should be provided for migrants who have disabilities, and quality care must be given to migrants who are pregnant. Rescue and immediate assistance must be given to any migrants in distress, and all migrants must be able to access legal services. The New York declaration last month contains the building blocks for migration and asylum governance that is rooted in law and founded on rights. What it needs is implementation – detailed, accountable and principled.
The toxic notion that
women should be subservient to men is embedded in a vast range of policies and practises which for generations have demeaned women and denied their equal rights. In the past 50 years we have seen tremendous progress on women's rights – thanks in part to the strong stand for equality taken by both Covenants and by CEDAW. But today we witness the resurgence of a narrative that reinforces harmful gender stereotypes and justifies discrimination against women.
Extreme gender discrimination is integral to the thinking of groups such as Daesh. But I also refer to the insidious recurrence of openly sexist language in political debates and in the media, in a number of countries – and to the renewal of policy proposals that aim to curtail women’s rights and autonomy. This backlash is particularly strong on women's sexual and reproductive rights – as is evident from the amendments to abortion legislation that are currently under review in a number of states.
In this climate, it is essential that we act to protect the legal guarantees of gender equality grounded in the Covenants. Judges are the gate-keepers of those guarantees, and their decisions contribute to shaping mind-sets regarding what is “right”. Unfortunately, research conducted by my Office shows that gender stereotypes frequently distort judges’ perception of facts, the credibility of witnesses and the harm inflicted on victims. Our efforts to remove stereotypes from the justice system need to become much more effective – and more academic engagement in this area could help.
Furthermore, in a number of countries where we were seeing progress towards gender equality, we are now seeing a backlash – a
return to greater inequality and harmful customs. Last year, for example my Office released a report on female genital mutilation in Guinea – the country with the second highest prevalence of female excision in the world – and we found the practice has actually
increased since 2002. Why is this happening, and what can we do about it? We have to find a way to effectively advocate measures that can durably alter cruel customs and patterns of thought.
Another area where our work encounters resistance relates to the rights of
lesbian, gay, bi, trans and intersex people. Huge strides have been made over the past decade, powered by growing activism and visibility on the part of LGBTI people themselves, and important reforms and new policies have been put in place. This is especially the case in Europe, North America and Latin America, but also in some countries in Asia and Africa. There have also been important developments in the jurisprudence of UN human rights mechanisms, and significant evolution in the interpretation of the relevant norms and standards. However, discrimination and violence against LGBTI people remains – and in several parts of the world, Governments either turn a blind eye or are complicit in abuse.
We need more fact-based reporting and analysis to help us clarify and dispel some of the confusion around these issues – particularly in cases where misconceptions are being stoked by bigotry. During the most recent session of the Human Rights Council, a resolution to establish the mandate for an Independent Expert to look at violence and discrimination on the basis of sexual orientation and gender identity gave rise to a very divisive discussion. I hope this new mandate will enhance global understanding and develop more evidence-based reporting.
New technology and the internet
No discussion of challenges to the Covenants and proposals for human rights research and activism could be complete without a mention of
new technology. Almost all of us now hold in our pockets what would once have been unthinkably powerful devices, all of them constantly recording all kinds of data.
Smartphones can help human rights defenders shed light on violations, amplify their advocacy and call for help. But they also enable increased surveillance.
I hope in coming months and years we can move forward in identifying parameters for security surveillance that are compliant with human rights, and which include strong provisions for oversight and accountability. In Germany, the discussion of the draft law on the Federal Intelligence Service makes this a particularly relevant topic this autumn. We will need to clarify exactly what we are asking businesses to do to safeguard their clients' data, including from demands by states which may lead to human rights violations. And we will need to make much more explicit the responsibilities of businesses to prevent misuse and commercialization of personal information.
Smartphones and data protection are not the only topic where new technologies generate human rights challenges.
cyber warfare threaten the right to life.
Genetically modified organisms and their protection as intellectual property present complex challenges to the right to health, the right to food and to cultural rights. These are fertile grounds for academic research, and my Office is watching some of your work on these points with great interest.
Finally, I would like to raise an institutional question which may have considerable impact on the Covenants' implementation over the next 50 years. I am eager to hear your thoughts on the Covenants'
division between economic, social and cultural rights, on the one hand, and civil and political rights on the other.
All of us here are aware of the specific historical and political backdrop which caused the original single Covenant on human rights to be abandoned and split into two. But despite the Vienna acknowledgment that all rights must be treated with the same emphasis; and despite the Human Rights Council's many resolutions on economic and social rights, it is a fact that in many countries, there is no actionable framework of laws and policies to apply economic and social rights
as rights – and no mechanisms of accountability to ensure that decision-makers protect them.
Many factors sustain this imbalance. One key question is whether we have our global institutional arrangements are sufficient to redress the fragmentation between economic, social and cultural rights and civil and political rights. How can we bring the Human Rights Committee and the Committee on Economic, Social and Cultural Rights closer, so that we more convincingly support the indivisibility of the Covenants?
Is it a question of more joint meetings – like the one recently held in July to commemorate the anniversary – or should we be thinking much bigger? Could the two Committees consider reports together? Could one body consider petitions under both Covenants – or even under all treaties? What other options are there to strengthen the monitoring of the Covenants?
In 2020, the General Assembly will review its 2014 resolution on strengthening the treaty body system. To prepare for that review, the Geneva Academy of International Humanitarian Law and Human Rights has launched an academic research project to look at options for reform and long-term sustainability of the treaty body system. The academic process is open to all relevant stakeholders, and I encourage all the academics in this audience to become involved. This is a key opportunity to help define the future of the Covenants and the treaty body system.
Friends and Colleagues,
The Covenants and the Committees have had enormous impact, at many levels, over the past five decades. It falls to us to protect that legacy, at a time of great turmoil, and to advance protection of human rights. Human rights are the most powerful drivers of peace and development. We can build up institutions of justice, equality, and inclusion – and with them, the world can move forward into greater dignity, justice, safety and wellbeing.
But to do that, we need to find much more effective ways to advocate change, to monitor real implementation, and to hold perpetrators to account. I am eager to hear ideas from you about the kinds of coalitions we could build; ways in which we need to reach out to grassroots voices; and what we can do to help the human rights community in every country come together for greater strength.