Johannnesburg – Statement by Ms. Navi Pillay United Nations High Commissioner for Human Rights University of Witwatersand, Johannesburg, 17 April 2013
Ladies and gentlemen,
Thank you for this kind invitation; I’m very pleased to be home, and at Wits. In the past four and a half years — since I became the High Commissioner for Human Rights — my Office has often been caught up in outbreaks of crisis around the world, so it’s not often that I have an opportunity to step back and take a longer perspective on our work. You’ve given me one such opening today, by asking me to address the daunting topic “Human rights achievements and challenges in a rapidly changing world”.
The mandate of the UN High Commissioner for Human Rights is to protect and promote all the human rights and fundamental freedoms to which everyone in the world is entitled. And it seems to me that this universally accepted baseline concept of human rights is, in itself, one of the greatest human achievements in history. The basic economic, social, political, cultural and civic elements which underpin the opportunity to live free from fear and want are not a reward for good behaviour. They are not country-specific, or particular to a certain era or social group. They are the inalienable entitlements of all people, at all times and in all places — people of every colour, from every ethnic and national group; whether they are disabled, or migrants; no matter their gender or sexual orientation.
However, I think it’s fair to say the vast majority of individuals in history do not enjoy their basic human rights to freedom and dignity. Life has been chaotic and cruel. And it has been in reaction to some of history’s most horrific extremes of oppression — for example, the trans-Atlantic slave trade, the Nazi Holocaust, and our experience in this country of apartheid — that our modern system of universal human rights has taken shape.
1. FLEXIBLE AND COMPREHENSIVE HUMAN RIGHTS SYSTEM
The Universal Declaration of Human Rights, which was adopted in 1948 by the UN General Assembly, was the first truly global expression of our human rights. In 1966, the General Assembly added two more detailed treaties — the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights – and together, these three treaties form what is sometimes called the International Bill of Rights. Since then, the member states of the United Nations have continued to add elements, extending the architecture of our international human rights system to become both wider and deeper.
Wider — more inclusive — thanks to new international treaties in which states agree to take action on important specific topics. Two conventions, which entered into force in 1969 and 1981, aim to eliminate all forms of racial discrimination, and discrimination against women. Another, which entered into force in 1987, prohibits torture and other cruel, inhuman or degrading treatment or punishment. Entering into force in 1990, 2003 and 2006, other conventions specifically address the rights of the child; the rights of migrant workers and their families; the rights of persons with disabilities; and the protection of all persons from enforced disappearance.
The system has also grown deeper, thanks to a range of human rights mechanisms that ensure the practical enforcement of the principles established by the treaties which I’ve just listed. They include treaty bodies to monitor implementation of the Conventions by states that are party to them, and panels to look into human rights complaints by individuals.
Greater depth has also been assured in recent years by the work of extra-national tribunals, including regional human rights courts and the international criminal tribunals. Regional courts of human rights have been set up in the context of the Council of Europe (the European Court of Human Rights, in 1959), by the Organisation of American States (the Inter-American Court in 1979), and by the African Union (the African Court on Human and People’s Rights, set up in 2004). These courts contribute to enforcing international human rights norms, and they further develop those norms through their rulings.
Additionally, in 1993 and 1994, the UN set up two international criminal tribunals to try genocide, crimes against humanity and war crimes in the former Yugoslavia and Rwanda. And in 1998 the permanent International Criminal Court was established, and this has been a particularly key development. I am aware that some people have criticized the ICC for having exercised its jurisdiction so far mostly in African countries. But this criticism fails to acknowledge that several preliminary examinations are underway in places outside Africa, including Afghanistan and Colombia. Moreover, most of the situations examined by the ICC are referred to it by the countries concerned, namely African States. (Two exceptions are Darfur and Libya, which were referred by the UN Security Council). Most importantly, the victims of the crimes examined by the Court in all these African situations are African children, women and men. They, rightly, are the ICC’s focus.
The work of these international tribunals is important to ensuring accountability for human rights violations. They send the unequivocal message that no one is above the law, and that victims of abuse everywhere have the right to seek justice and redress. This is an immense achievement.
(iii) HUMAN RIGHTS COUNCIL
Another cornerstone in this perhaps complex, but also very flexible and resilient architecture has been the establishment of the Human Rights Council. The Council was set up by the UN General Assembly in 2006, and is composed of 47 member states. My Office acts as its Secretariat. The Council has addressed a range of often sensitive human rights issues, such as corruption. Resolution 19/38 notes that “the enjoyment of human rights, be they economic; social and cultural; or civil and political — in particular the right to development — is seriously undermined by the phenomenon of corruption (…) which may endanger the stability and security of societies, undermine the values of democracy and morality and jeopardize social, economic and political development”.
In addition, the Human Rights Council mandates international commissions of inquiry, and names independent experts to monitor and document human rights violations. Known as Special Rapporteurs, they carry out country investigations into areas of human rights crisis — such as Israel’s occupation of Palestine or the crisis in Syria — and investigate global issues such as the sale of children or enforced disappearances. (They currently include two South African nationals, by the way — Rashida Manjoo, the Special Rapporteur on violence against women, and Christof Heynes, Special Rapporteur on extrajudicial, summary or arbitrary executions).
The Human Rights Council has been particularly notable for its Universal Periodic Review, a remarkable process that examines the human rights record of all the 193 member states of the United Nations without exception. Under the Universal Periodic Review, governments take charge of assessing and challenging each other’s detailed submissions regarding human rights across a number of topics, including women’s rights and domestic violence. I can assure you that this is an often very powerful process, ensuring a degree of scrutiny of government policies and actions that would have been unthinkable even a decade ago.
Finally, as a kind of arch that spans and protects a great part of this architecture, there is my Office — the Office of the High Commissioner for Human Rights. This body was established by the United Nations 20 years ago, so that an independent, authoritative voice would speak out against human rights violations wherever they occur. We bring the weight of the United Nations to the support of civil society organizations and individual human rights defenders around the world, and lend our voice to the voiceless.
With field presences in 58 countries and a staff of more than 1,000, my Office promotes and protects human rights through advocacy, by monitoring and documenting human rights situations, by training national and international actors, and by assisting national authorities to shape new policies and laws. We have also built a rapid response team to deploy personnel in human rights crises.
This is the international human rights system we have in place. It is a dynamic construction with a remarkable capacity for adaptation and extension as new challenges emerge, and I’ll be addressing a few of these areas in a moment. First, however, I want to emphasize that this is not only a legal or philosophical framework. The main achievement of our human rights system is that it has saved and improved lives. Because of this system, uncountable numbers of people have gained independence; have secured freedom from torture or unlawful imprisonment; and have been given aid or protection from prejudice and harm.
These are ideas and norms that have changed the world. However, they have not abolished abuse. They have not eradicated poverty. As my Office grapples daily, even hourly, with cases of entirely avoidable human suffering, it may even seem that the global human rights situation is getting worse. Sometimes our work reminds me of something that Nelson Mandela wrote in his autobiography: “I have walked that long road to freedom. I have tried not to falter; I have made missteps along the way. But I have discovered the secret that after climbing a great hill, one only finds that there are many more hills to climb.”
So now that I have enumerated the progress of the international human rights system over the past 65 years, I will rest for a moment on the peak of that great series of hills we have climbed, and take a look at the horizon, to see if I can make out some of the hills that lie ahead in the mist.
One way to develop clarity about the human rights challenges of coming decades is to look at the great changes that we are undergoing as a society. Globalization. Terrorism. Urbanization and migration. And, interlaced with all of those phenomena, the new communications universe that has transformed our lives, the Internet.
Globalization of the market economy can have a positive impact on human rights, by increasing standards of living and access to vital services such as education and healthcare. But the current sharp surge in transnational business has led to the development of increasingly global markets for human effort, natural resources and capital, and these can involve human rights abuses vividly summed up in the appalling term “disposable people”.
Displacement. Environmental degradation. Land-grabs leading to increased poverty. It is evident that globalization can exacerbate gaps in many societies between rich winners and poor losers. These are formidable challenges — particularly thorny at a time of global recession, when the urge for rapid development may clash, in a shrinking economy, with urgent environmental concerns such as climate change.
Together with their civil and political rights, all human beings have economic, social and cultural rights. These are recognised and protected in international human rights instruments, and they include the right to decent education, to adequate housing, to a standard of living supportive of a life in dignity, and to adequate healthcare. United Nations member states have a legal obligation to protect economic, social and cultural rights, and to take “progressive action” towards their fulfillment.
So regarding the trend of globalization, our challenge in coming years will be to continue to engage with business and regulators to discourage practises such as sweatshop conditions, environmental harm, and thoughtless development which damages the rights of many individuals, in particular indigenous peoples and the disadvantaged. Corporations must be helped to understand that truly sustainable profits come from policies that promote human rights, because the only really stable societies are those in which people enjoy lives that satisfy their need for dignity and freedom.
Human rights principles and standards should be a yardstick that serves to assess economic policies. We must work to ensure that regulations promote more transparency regarding financial transactions. We need to enhance the accountability of corporations and ensure that governments, too, are accountable and respond to the needs of people in an inclusive and equitable manner, ensuring that the poor and the marginalized can also participate in the process of making decisions.
2. RACISM AND HATE SPEECH
A second powerful trend is urbanization, and its related force, migration. Today, as you all know, one half of the human beings on our planet live in cities, and those figures continue to surge. A very broad range of human rights may be affected by these phenomena — including the right to adequate and secure housing and living conditions — but for the purposes of this talk, I’d like to highlight a number of issues that touch on tolerance.
When groups of people with diverse origins, languages and practices suddenly find the distances between them have been compressed, their co-existence may be difficult. There may be racism or other forms of irrational prejudice which are in themselves intolerably unjust, and which may also lead to violence. In the past two decades, hate speech, claims of hate speech, and violent reactions to perceived hate speech have created enormous friction across the globe. And this has led some people to challenge various forms of expression which they perceive to be offensive, or see as constituting incitement to intolerance and violence.
Freedom of expression is a vital cornerstone of democracy. It allows individuals to argue for their enjoyment of all other rights, from fair trials, freedom of religion and free elections to decent living conditions. So as a matter of fundamental principle, the limitation of any kind of expression must remain an exception.
On the other hand, speech can be an incitement to violent action. In the late 1990s, I served as a judge on the International Criminal Tribunal for Rwanda, and I heard a case which several individuals working in media organizations had quite outright called for massacres, directly and publicly inciting murder. Because of cases like these, where speech can clearly lead to wrongful action, states are required under international law to prohibit certain forms of speech that incite violence and hatred.
My Office has recently helped create a detailed body of guidance known as the Rabat Plan of Action to help clarify what kinds of speech must be prohibited. This Plan, which was developed over two years by experts around the world, recommends that criminal sanctions should be a last resort, for situations that it clearly defines according to six thresholds. (They include context; the speaker’s standing; intent to advocate or incite; content; scope or extent; and imminence). In facilitating the development of this kind of guideline, we seek to help people of different backgrounds, histories and religions to live together in mutual tolerance and respect.
Similarly, we recently convened a high-level panel to highlight the need to fight racism in sport. This is a symbolically important issue. Professional athletes, and sporting events, play an important role in inspiring our children and teenagers. Bigotry of the kind that is too often displayed on professional football pitches is an affront to human rights, and it is illegal under international human rights law. I insist that event organizers must provide secure sporting grounds where acts of racism are clearly outlawed. At the very least, they must ensure that there is accountability for racist offences.
3. THE INTERNET
I’d like to turn now to a very complex range of human rights challenges related to what is perhaps the most powerful global trend in recent history: the Internet. Unquestionably, this sudden new access to information and expression is, primarily, a force for good. The Internet has obliterated attempts to establish monopolies over information and the news. Its multiple sources boost informed decision-making by citizens and leaders, and it hugely increases pressure for transparency and accountability. The Internet can also empower individuals — even the most disadvantaged — to assert their rights and to participate in opposing oppression. Moreover, it connects citizens to a wide range of resources, notably education, but also improving access to healthcare and economic opportunities.
As part of their obligation to respect the rights to freedom of opinion and expression, all States have a duty to facilitate access to the Internet. Except under a few, very exceptional and limited circumstances prescribed by international human rights law — and I will return to that topic in a moment, because it is an important one — there must be as little restriction as possible to its free flow of information.
Last year my Office convened a panel discussion regarding freedom of expression on the Internet. We heard from Google that in 25 out of the 150 countries where Google operated, one or other of its products were either banned or blocked. This is a worrisome trend. States may not prevent access to websites because they display opinions or beliefs that are critical of governments or established systems of thought.
It is a fact that violators of human rights operate best under the cloak of darkness, ignorance and silence. The Internet provides exposure to the light of day. Cell-phone cameras, geo-spatial technology and other developments in communications technology can be used to highlight and track attacks against civilians, and movements of families displaced from their homes. These images communicate the facts of human rights violations. They alert the conscience of mankind.
However, those same communications devices can also be used as tools to monitor, locate and target individuals who disseminate information that is critical of their governments. We must be mindful of the need to stand very firmly against this surveillance, particularly in the case of vulnerable human rights defenders. Surveillance software is also widely available to individuals, and this practise of “cyberstalking” also has the potential to violate rights to privacy, among other rights.
In general, the intimacy and ubiquity of smartphone devices, which nestle in our pockets wherever we go, mean that a vast amount of personal information is now available online. Some of this information relates to data we have deliberately uploaded, for example via social networks. Other bodies of personal information regarding our location, interests and relationships may have been harvested via “cookies” that operate without our conscious knowledge. Who has access to this pool termed Big Data, whether and how it is stored, and the question of the consumer’s informed consent to its use, all raise serious concerns related to the right to privacy.
For there is a dark side to the Internet, and it would be foolish to ignore that, amid our celebration of its many benefits. Cybercrime is a growing challenge. In many cases, criminals are exploiting the speed, convenience and anonymity of modern technology to commit a range of already existing crimes, such as fraud, trafficking of persons or the sale of pornographic images of children. Other aspects involve entirely new forms of criminality evolving within the online environment: phishing, hacking, identity theft, and virus attacks against computer data systems, including for vital installations such as power-plants, electric grids, and the computer systems of government.
As some of you may have noted, NATO has recently sought guidance regarding international law in cyber-warfare. A number of the independent experts that NATO has been working with have drawn up an advisory manual, and its proposals make it clear that something many of us wish would remain among the fantasies of science fiction could soon – and indeed, may already — be very real. Building on existing international humanitarian law, these proposals allow cyber-attacks on computer systems, except those of hospitals, dams and power-stations; and also include the notion that, despite being civilians, computer hackers who take part in online attacks could be viewed as legitimate targets.
The human rights aspects of these potential new developments in cyber-warfare are obviously an important question that will need to be addressed. In addition to international humanitarian law, whenever it is pertinent, we must insist that human rights norms and obligations must apply wherever a government’s actions deliberately target essential human rights-related services — such as health-care facilities, educational capacities, or energy services necessary for safe housing — and also whenever targets could endanger the right to health or the right to life. Moreover, if governments do not exercise due diligence, and take reasonable steps to protect against attacks by third parties, human rights standards must also have a strong protective role to play.
Regarding cyber-crime and cyber-security, the notion of security must include not just the security of assets and of the cyber-environment, but also protection of users and subjects. Human rights must be protected both from cyber-crime and from abusive enforcement. All measures carried out in the context of cyber-crime and cyber-security must be undertaken in full conformity with international human rights standards, including those applicable to freedoms of expression, information, opinion, association, privacy rights, the dissemination of hate speech, racism and xenophobia, child pornography and abuse, and trafficking in persons.
From this rapid tour of some of the human rights challenges that have already been raised by our new online environment, we can see that there is no reason to suppose that the Internet will spontaneously evolve to become any more ethical than the “real” world. And there is also no reason why the rules of behaviour should be different on line than off line.
But bringing the rule of law to cyberspace may be an arduous enterprise. Certainly it will involve a number of actors, including non-governmental bodies. And paradoxically —although I have emphasized that the Internet should be considered a space of freedom of expression — that effort will include restricting certain types of information or expression that may be found online.
International law, as we’ve seen, prohibits certain kinds of expression in order to respect the rights of others. They include direct and public incitement to commit genocide, as well as advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. The prohibition on child pornography is another example.
Incitement to terrorism is yet another very challenging topic that may involve significant controversy. Security Council resolution 1624 (2005) has called upon States to “prohibit by law incitement to commit a terrorist act or acts” and to prevent such conduct. However, States have a broad margin of discretionary power to interpret what kinds of expression constitute incitement to terrorism, and this may be open to misuse.
International human rights law lays down a number of criteria for restrictions to the right to freedom of expression. They must be defined by law, in terms clear enough to enable people to regulate their conduct accordingly. They must be necessary and proportionate — which means among other things that the State must carefully assess whether there is a direct and immediate connection between the restricted speech and the threat. Restrictions need to involve effective safeguards, including oversight by an independent and impartial body. And they must be precise. Blocking and filtering technology must not be deployed to obstruct access to critical scrutiny.
None of us can really know what the future holds. I am simply trying to map out a few of the difficult issues that seem likely to lie ahead. As I do this, I think it becomes clear that when we extend human rights protection into these very challenging new areas, we will be able to employ the landmarks we have already achieved. We can hold violators to account using the international human rights standards that have been slotted into place over the past 65 years.
Our journey so far has provided us with precisely the skills and tools that we will need in the future, as we continue our work to protect the rights and dignity of all.