31/28 Outcome of the panel discussion on a human rights-based approach to good governance in the public service - Report of the Office of the United Nations High Commissioner for Human Rights

Human Rights Council Thirty-first session

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of the

High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Outcome of the panel discussion on a human rights-based approach to good governance in the public service

Report of the Office of the United Nations High Commissioner

for Human Rights

Summary

The present report is submitted pursuant to Human Rights Council resolution 25/8.

It provides a summary of a panel discussion on a human rights-based approach to good

governance in the public service, held on 24 September 2015, during the thirtieth session of

the Council.

I. Introduction

1. Pursuant to resolution 25/8, the Human Rights Council held a panel discussion on a

human rights-based approach to good governance in the public service on 24 September

2015, during its thirtieth session.

2. The objective of the panel discussion was fourfold: (a) exchange views on the role

of the public service in the promotion and protection of human rights; (b) identify

challenges and share good practices with regard to a human rights-based approach to good

governance in the public service; (c) examine the findings of the report of the United

Nations High Commissioner for Human Rights on the role of the public service as an

essential component of good governance in the promotion and protection of human rights

(A/HRC/25/27); and (d) promote better understanding of international human rights norms

and standards relevant to the public service.

3. The panel discussion was chaired by the President of the Human Rights Council and

moderated by the Director at the Max Planck Institute for Comparative Public Law and

International Law, Anne Peters. The Director of the Human Rights Treaties Division of the

Office of the United Nations High Commissioner for Human Rights (OHCHR) delivered an

opening statement. The panellists were: Adetokunbo Mumuni, Executive Director of the

Socio-Economic Rights and Accountability Project in Nigeria; Kim Taekyoon, Professor of

International Development at the Graduate School of International Studies at Seoul

National University; Safak Pavey, member of the United Nations Committee on the Rights

of Persons with Disabilities and Deputy Speaker and Member of the Grand National

Assembly of Turkey; Mariana González Guyer, Director of the National Human Rights

Institution and Ombudsman of Uruguay; and Jan Pastwa, Director of the National School of

Public Administration in Poland.1

II. Opening of the panel discussion

4. In his opening statement, the Director of the Human Rights Treaties Division

observed that good governance in every aspect of the public sphere was a core mission for

every State. Human rights and good governance were intrinsically interlinked and

interdependent. A human rights-based approach to good governance required States to

guarantee non-discrimination and equality in the provision of public services. Good

governance also served as a strong driver of public confidence, peace and sustainable

development. When State-run processes and mechanisms were transparent, accountable to

the people, operated efficiently and effectively, and respected the rule of law, public

confidence was strengthened, public grievances diminished, public well-being enhanced,

and economic and social progress improved.

5. Nevertheless, multiple challenges to good governance persisted, including austerity

policies, untamed privatization, corruption, conflict and violence. Failure to provide

important public services, or reductions in the quality of these services, resulted in a loss of

legitimacy, inability to sustain development, social unrest, insecurity and migration. Human

rights obligations and core principles such as non-discrimination, participation and

accountability should inform governance efforts. Human rights treaty bodies had provided

1 The archived webcast of the full panel discussion is available from http://webtv.un.org/search/panel-

discussion-on-human-rights-based-approach-to-good-governance-23rd-meeting-30th-regular-session-

of-human-rights-council/4505293520001?term=good%20governance (accessed 21 December 2015).

guidance relating to good governance, for example the Committee on Economic, Social and

Cultural Rights, in its general comment No. 12 (1999) on the right to food, had stated that

“Good governance is essential to the realization of all human rights, including the

elimination of poverty and ensuring a satisfactory livelihood for all.”

6. The growing trend towards the privatization of public services had potential negative

consequences for human rights. Reference was made to a recent report of the Special

Rapporteur on the right to education (A/HRC/29/30), which described how opening up the

education sector to privatization and commercialization might result in a failure to ensure

universal access to education and undermine the right to education. Where public services

were privatized or provided by way of public-private partnerships, States must therefore

ensure compliance with human rights and put in place effective quality control,

accountability and monitoring mechanisms.

III. Summary of the proceedings

7. In her opening remarks, Ms. Peters introduced the panellists. She referred to the

OHCHR report on the role of the public service as an essential component of good

governance in the promotion and protection of human rights (A/HRC/25/27) and noted that

the panel was premised on the idea that analysing the public service through a human rights

lens could yield policy benefits. The mutually reinforcing links between human rights and a

well-governed public service were reaffirmed. The human rights of ordinary citizens came

into play when they interacted with the public service of their State or region. The human

rights of public officials were also affected, notably their right to be selected, hired and

promoted without discrimination; only civil servants who were remunerated properly, and

whose human rights were respected, would be willing and able to perform their tasks

without resorting to corruption.

8. The moderator explained that the terms “public service” or “public administration”

were used interchangeably to cover the entire machinery funded by the State budget and in

charge of the delivery of State functions undertaken by the various branches of government,

namely law-making, the application of those laws and, finally, the enforcement of the laws.

Throughout history, different cultures and political systems have had, and continued to

maintain, diverging views about which functions the State should fulfil; how intensely; and

with what level of priority. Accordingly, the analytical question of what belongs to the

“public service” could be divided into the following sub-questions: (a) what must be done

in the general interest of a given society (“for” the public); (b) by institutions funded and

installed directly or indirectly by the public?; and (c) which services should be “public”, as

opposed to being left to the realm of the private, individual and business sphere? The

political choices made by States ranged from the very lean and minimal State and public

administration, at one end of the spectrum, to a broader, full-fledged welfare State, at the

other.

9. The human rights perspective was useful for identifying both the substantive content

of the public services, as well as the process through which they should be offered. A State

that had ratified the International Covenant on Economic, Social and Cultural Rights, for

example, was ultimately responsible for securing some type of health system to realize the

right to health. While this did not prohibit privatization of the health system, the State was

still required to be the ultimate guarantor of the relevant right. Good governance was

generally regarded as encompassing transparency, accountability, openness and

participation;2 as well as integrity, non-discrimination, equality, efficiency and

2 Human Rights Council resolution 25/8.

competency;3 and responsiveness to the needs of the people.4 Given the partial overlaps

between these elements, it was suggested they be subsumed by the three-pronged formula

established in the 1998 Aarhus Convention on Access to Information, Public Participation

in Decision-making and Access to Justice in Environmental Matters (transparency,

participation and access to justice).5 Examining these three pillars through a human rights

lens could assist in filling the elements with content adaptable to different cultures and

contexts.

10. The moderator then invited the panellists to make their presentations.

A. Contributions by panellists

11. Mr. Mumuni focused on two issues: firstly, the role of non-governmental

organizations (NGOs) in initiating legal action against corruption where anti-corruption

institutions failed to do so; and secondly, advocacy for the establishment of an international

anti-corruption court to try grand corruption cases and facilitate repatriation of stolen funds

to victim States.

12. NGOs could play a key role in combating corruption by ensuring the effective

enforcement of anti-corruption legislation and the United Nations Convention against

Corruption, and by pushing anti-corruption institutions, through legal actions, to properly

investigate and prosecute corruption cases so as to deter future misconduct. They could

contribute to prevention, for example, by persuading Governments to enact legislation

including whistle-blower protection laws. Given that grand corruption (and impunity of

perpetrators) was inimical to the public interest, NGOs could also initiate “public interest

litigation”, pursuing corruption cases where anti-corruption institutions failed to do so or

that otherwise would not be subject to scrutiny. It was thus important to relax locus standi

requirements and encourage courts to accept public interest litigation and class action

lawsuits in corruption cases. In addition to the need for a conducive legal and judicial environment, it was noted that NGOs needed to acquire the necessary expertise and

resources to effectively use public interest litigation.

13. He suggested that the establishment of an international anti-corruption court would

be a way to probe allegations of grand corruption. It was observed that, in a context where

many had lost faith in the ability of national courts and Governments to combat high-level

official corruption, an international anti-corruption court could serve to erode the

widespread culture of impunity and address the challenges undermining the effective

repatriation of stolen assets to victim States. Grand corruption was a complex problem

causing severe human suffering and required novel solutions. Parallels were drawn with the

International Criminal Court and it was suggested that its track record offered hope for a

well-functioning anti-corruption court.

14. Mr. Taekyoon elaborated upon the links between good governance and the

Sustainable Development Goals. These Goals went beyond the Millennium Development

Goals, which did not include significant governance aspects. Recalling Council resolution

25/8, the panellist noted that deepening good governance practices at all levels was a

prerequisite for the full realization of human rights, including the right to development.

3 Human Rights Council resolution 19/20.

4 Commission on Human Rights resolution 2000/64.

5 Meeting of the Parties to the Convention on Access to Decision-making and Access to Justice in

Environmental Matters, decision II/4 on promoting the application of the principles of the Aarhus

Convention in international forums (ECE/MP.PP/2005/2/Add.5).

15. Despite good governance being essential to achieving successful development

outcomes, it was unclear how it could, or should, be reflected in the Sustainable

Development Goals. The Secretary-General's High-Level Panel of Eminent Persons on the

Post-2015 Agenda had argued that governance would be best positioned as a stand-alone

goal.6 However, an alternative approach would be to integrate governance into issue-

specific goals. Another option would be to link governance considerations to questions of

“means of implementation” and development financing in the Sustainable Development

Goals, possibly in the form of a set of principles or guidelines attached to the articulation of

these “means.” Good governance had a close connection with Sustainable Development

Goal 16, which referred to, inter alia, the building of effective, accountable and inclusive

institutions at all levels.

16. Good governance became a controversial term because of its usage in the realm of

international development assistance. Developing countries were concerned about the use

of good governance targets and indicators as a form of aid conditionality. The Sustainable

Development Goals could be seen as an opportunity to creatively construct new targets and

indicators that took such concerns into account. The establishment of common principles by

the international community would enable customization in the selection of targets and

indicators based on national and local contexts. The logic of good governance should be

adapted to suit developing countries with differing rates and patterns of development.

17. Ms. Pavey spoke about the main challenges to implementation of the good

governance agenda at the national level. She pointed to the gap between ratification of

human rights treaties and their national implementation, citing several examples. Dominant

deep-rooted cultures can prevent the effective integration of international norms into

national and local landscapes. While reforms were sometimes adopted to please

international public opinion, political authorities in certain countries allowed bad practices

and policies to continue. When tradition clashed with human rights, it was suggested that

one had to go beyond tradition in order to protect rights and freedoms.

18. Ms. González Guyer elaborated on the challenges and weaknesses of good

governance from a gender perspective. She noted that a focus on gender was inherent in a

human rights perspective. It was important to mainstream a gender perspective across

different dimensions of governance in a cross-cutting manner, while overcoming the view

of women as a vulnerable group. Modifying gender perceptions on the basis of good

governance and public service, ensuring equal treatment of men and women, and making

progress in terms of access to and enjoyment of rights, all constituted a challenge but also

presented opportunities. Access to public services was essential but not sufficient to

ensuring women’s full enjoyment of all human rights.

19. Institutions were a part and a product of a wider gender gap, and this permeated their

laws and norms, features, administrative practices, informal mechanisms and the positions

occupied by women and men within them. It was therefore necessary to review

discriminatory practices in government institutions. The relationship between gender and

governance had not been sufficiently addressed by theoreticians or by empirical studies.

Women had transformed processes of governance with their participation in different State

institutions, at executive, legislative and judicial levels, as well as in civil society

organizations. Since the beginning of the century, there had been a particular focus on the

participation of women in forums for the design of new governance systems, a factor

6 “A New Global Partnership: Eradicate Poverty and Transform Economies through Sustainable

Development. The Report of the High-Level Panel of Eminent Persons on the Post-2015

Development Agenda”. Available from www.post2015hlp.org/the-report (accessed 21 December

2015).

instrumental in building good governance. If good governance and public service ignored

gender inequalities, they would not ensure genuine citizen participation and key principles

of accountability, non-discrimination, equality, transparency and access to information and

enforceability of rights.

20. Mr. Pastwa focused on the potential and limits of law in respect of good governance

in public administration. He indicated that legislation was a sine qua non, but was

insufficient by itself to ensure the realization and pursuit of human rights by a State’s public

administration. The concept of a human rights-based approach to good governance

presented an opportunity to effect real change. Reference was made to the 21 Gdansk

demands formulated in August 1980 by the Gdansk Shipyard workers, seeking equal rights

to access public office for all members of the public and citizens, and demanding that an

open and accessible Government lead the country in order to effect change in citizens’

lives. Awareness and positive attitudes among public officials were critical factors, without

which legislation alone would not suffice. Human rights served as a good basis for

changing the mindsets of public officials from a “cold professionalism approach” of just

managing problems to a “hot professionalism approach” focused on caring for people and

understanding and meeting their aspirations.

B. Interactive discussion

21. During the panel discussion with two rounds of questions and answers,

representatives of the following States and organizations took the floor: Algeria (also on

behalf of the African Group), Australia, Azerbaijan, Bahrain, Bangladesh, Belgium, China,

Colombia, Ecuador, Egypt, Estonia, Ethiopia, France, Georgia, Ghana, India, Iran (Islamic

Republic of), Ireland, Montenegro, Morocco (also on behalf of the Organisation

Internationale de la Francophonie), Namibia, Pakistan (on behalf of the Organization of

Islamic Cooperation), Poland (on behalf of the core group of sponsors of Human Rights

Council resolution 25/8), Qatar, the Russian Federation, Senegal, Sierra Leone, Singapore,

South Africa, Tunisia, Turkey, the United States of America, and the European Union.

Representatives of the following NGOs also took the floor: Africa Speaks, Agence pour les

Droits de l’Homme, Americans for Democracy and Human Rights in Bahrain, Arab

Commission for Human Rights, Global Network for Rights and Development, NGO Group

for the Convention on the Rights of the Child, and Institut International pour la Paix, la

Justice et les Droits de l’Homme.

22. Speakers highlighted the links between good governance and human rights, and

underlined the importance of good governance being strengthened at all levels, including

within international organizations. Many delegates presented and shared their domestic

efforts and best practices aimed at improving governance and public services, including

reform of their judiciary and administrative sectors, ensuring transparency and

strengthening the participation of citizens in decision-making processes, inclusion of human

rights in school curricula and in police and judicial training programmes, e-governance

initiatives, investment in services like health care, education and housing, as well as efforts

to combat corruption. Professional, accountable and transparent public services upholding

the highest standards of efficiency, competence and integrity constituted one of the

essential components of good governance. Good governance principles and standards in

public services served as a preventive mechanism against numerous forms of corruption.

Delegates pointed to groups with limited access to public services, including children,

elderly, persons with disabilities, minorities and, in some cases, women, who needed

special attention, with a view to ensuring that their human rights were not undermined.

23. The principles of impartiality, rule of law and combating corruption were

highlighted as essential to achieving good governance, as well as to building human capital

and realizing the right to development. Delegates recognized that good practices at national,

regional and international levels should be consolidated. Ensuring a human rights-based

approach to good governance constituted a global challenge. One delegation referred to the

aid delivery system, which was often mired by conditionality and thus considered unhelpful

by the countries concerned. Certain delegations presented domestic efforts to promote good

governance and increase citizen participation in public administration, including through

their national human rights institutions (NHRIs) and ombudspersons, national legislation,

national action plans and electronic governance initiatives. Participation in international

efforts, including through the United Nations as well as the Organisation for Economic Co-

operation and Development, was also outlined. Additionally, delegates emphasized the

importance of ensuring good governance within the work of international organizations.

One speaker highlighted the need for States to mobilize sufficient resources to realize

children’s rights, through measures like taxation, and to prioritize children’s best interests

in all decision-making.

24. Delegates reiterated that a human rights-based approach was essential to the

provision of public services. Ineffective governance was described as lying at the heart of

development challenges, leading to waste, corruption, decline in business confidence,

discrimination and failure to deliver basic services required for the enjoyment of human

rights. Questions were raised regarding the role of the public service in achieving the

Sustainable Development Goals, as well as the manner in which the post-2015 development

agenda could foster the consistent use of a human rights-based approach for the delivery of

public services.

C. Responses from panellists

25. Mr. Pastwa spoke regarding the realization of good governance in public

administration and emphasized the need to adapt the measures to be taken to the goals to be

achieved. A pragmatic approach to realizing good governance required an appropriate legal

framework and budget, together with sufficient leadership from those involved in

implementation. It was important to set good examples and identify and exchange good

practices. Regarding the public service’s role in delivering the Sustainable Development

Goals of the post-2015 agenda, he held that public service could open itself up to external

stakeholders and invite them to participate widely in governance and policymaking, also

bearing in mind the volume of issues raised in Goal 16. They could also strengthen

partnerships in this process. States should ensure access to justice by making available the

necessary budgetary, organizational and technical means. Training for members of the

public service was needed, while citizens should be educated on how to exercise their

rights. It was stressed that enhancing transparency and access to information was an

invaluable investment and required an adequate budget. The use of digital means was

recommended to significantly reduce costs in this regard. Practical examples of how

corruption harmed individuals and society should be provided. It was also important to

provide training to members of the public service on how to break the vicious cycle of

corruption and avoid a corrupt organizational culture.

26. Mr. Mumuni addressed the question of how to prevent corruption and the diversion

of public funds by high-ranking officials. Grand corruption showed the need to establish an

international anti-corruption court to handle corruption cases that domestic courts were

reluctant or unable to take up. Such a court would serve as a deterrent to those wishing to

use public office for personal enrichment. He shared his views about how to make the

public administration more responsive to citizens’ general interests. It was acknowledged

that, in certain contexts, corruption was the main reason why people did not benefit from

public service and a strict and even-handed enforcement of the rules applicable to civil

servants was needed in cases of violations. Contrary to the suggestion that lack of political

will was a reason for ineffective human rights promotion and protection, strong institutions

were essential to ensure that no individual, regardless of their power, would be able to

subvert the system.

27. Mr. Taekyoon spoke about how to promote synergies between international financial

institutions and the United Nations concerning policies on good governance and public

administration. Synergies could be enhanced through a common memorandum to set the

highest standards of public services and increase the sharing of information and best

practices. He commented on questions relating to creating an international environment

conducive to improving the public service and about concrete international mechanisms to

assist countries with financial limitations. It was noted that development financing was

critical in implementing the Sustainable Development Goals and other international

developmental goals in the recipient countries. Three different levels of support were

referred to in this context: (a) reform of the domestic tax system to grant access to hidden

funds otherwise controlled by the informal sector, and enabling citizens to hold

Governments accountable for how taxes were spent; (b) at the international level, through

official development assistance and foreign direct investment; and (c) innovative solutions

such as a solidarity tax.

28. Ms. González Guyer responded to a question on how the Human Rights Council

could further promote good governance in the public service. She pointed out various

avenues, for instance, the universal periodic review and follow-up to recommendations by

the treaty bodies, through which the Council could exert influence. NHRIs also had an

important role to play in this regard given their public, yet autonomous, institutional status.

Hence they should be strengthened and cooperate closely with civil society to enhance their

efficacy. NHRIs served as oversight mechanisms to ensure State compliance with human

rights and could also prepare independent reports for various treaty bodies. Additionally,

NHRIs and ombudspersons could contribute to standard-setting internationally, while

simultaneously enforcing standards domestically. Regarding the role of private enterprises

in governance, there was a need to pay particular attention to the increasing trend towards

privatization of public services such as water, education and health. The State must serve as

a guarantor and carry the ultimate responsibility for ensuring respect for all human rights.

The potential of e-government and new technologies was highlighted with regard to the

realization and monitoring of human rights, in particular in terms of access to information.

However, it was stressed that e-government and access to information were not, by

themselves, guarantors of a human rights approach.

29. Ms. Pavey outlined the most common challenges arising from the outsourcing of

public services and highlighted the need for greater transparency in shaping public policy.

Austerity and privatization redefined roles and the market economy brought in new values

and policies that became part of official policy in many countries. There was thus a need to

invest in cultural transformation rather than merely in legislative change. Responding to a

question regarding access to and participation in public services by persons with

disabilities, she noted that the core human rights principle of non-discrimination was

essential for achieving good governance; public services should be made inclusive and

accessible to persons with disabilities. The resistance of the dominant culture was cited as

one of the main reasons for limited access and participation. In densely populated countries,

lack of resources created further resistance to the sharing of services between persons with

disabilities and those without disabilities. The importance of education, awareness-raising,

training for public servants and sharing of best practices was highlighted in this context.

IV. Conclusions

30. In summing-up the discussion, the moderator noted that the panel discussion

illustrated the need to combat corruption and to strengthen transparency and

information-sharing. Elements were identified for improving good governance in

public administration at (a) the international level: using human rights instruments

and mechanisms, and drawing on the recommendations and guidance of the special

procedures and treaty bodies as well as on the guidelines for State reporting and the

universal periodic review; and (b) the national level: improving transparency and

access to information and official documents to help empower citizens as watchdogs of

an effective public service.