32/43 Report of the Independent Expert on human rights and international solidarity
Document Type: Final Report
Date: 2016 Apr
Session: 32nd Regular Session (2016 Jun)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
Human Rights Council Thirty-second session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Independent Expert on human rights and international solidarity
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the thematic
report of the Independent Expert on human rights and international solidarity, Virginia
Dadan, prepared pursuant to resolution 26/6. In that report, the Independent Expert presents
a summary of the outcome of a series of mandated regional consultations on the proposed
draft declaration on the right of peoples and individuals to international solidarity which
was initially submitted to the Council in June 2014. The report highlights the comments
and suggestions of a general nature that were gathered in the five regions between 2015 and
early 2016, and contains in the conclusion the next steps forward.
Report of the Independent Expert on human rights and international solidarity
Contents
Page
I. Introduction ...................................................................................................................................... 3
A. Background of the regional consultations ................................................................................ 3
B. Objectives and expected outcome ............................................................................................ 4
C. Format and modality ................................................................................................................ 4
II. Western European and other States region, and Eastern European region ....................................... 5
A. Panel presentations and discussion on human rights and international solidarity .................... 5
B. Comments and recommendations of a general nature on the proposed draft declaration ........ 6
III. African region .................................................................................................................................. 7
A. Panel presentations and discussion on human rights and international solidarity .................... 8
B. Comments and recommendations of a general nature on the proposed draft declaration ........ 8
IV. Latin American and Caribbean region ............................................................................................. 9
A. Panel presentations and discussion on human rights and international solidarity .................... 10
B. Comments and recommendations of a general nature on the proposed draft declaration ........ 11
V. Asia-Pacific region ........................................................................................................................... 12
A. Panel presentations and discussion on human rights and international solidarity .................... 13
B. Comments and recommendations of a general nature on the proposed draft declaration ........ 14
VI. Middle East and North Africa region ............................................................................................... 15
A. Panel presentations and discussion on human rights and international solidarity .................... 15
B. Comments and recommendations of a general nature on the proposed draft declaration ........ 17
VII. Conclusions ...................................................................................................................................... 18
I. Introduction
1. The Human Rights Council, in its resolution 26/6, decided that the Independent
Expert on human rights and international solidarity should convene a series of regional
consultations in order to obtain input from as many Member States as possible on the
proposed draft declaration she had previously submitted for the consideration of the
Council at its twenty-sixth session, in June 2014 (A/HRC/26/34). The Council also
requested the Office of the High Commissioner for Human Rights (OHCHR) to assist her
in organizing those gatherings. In that regard, the Council, in the same resolution, further
requested the Independent Expert to consolidate and consider the output from all the
regional consultations; to submit to it, at its thirty-second session, a report on those
consultations; and to submit to the Council and the General Assembly, before the end of her
second term, a revised draft declaration.
2. The Independent Expert extends her gratitude to OHCHR for organizing the five
regional consultations and for its full engagement during the proceedings in the regions.
She presents below a summary of what transpired during the regional consultations.
A. Background of the regional consultations
3. One of the conclusions expressed by Rui Baltazar Dos Santos Alves in the working
paper on human rights and international solidarity that he submitted to the Sub-Commission
on the Promotion and Protection of Human Rights (E/CN.4/Sub.2/2004/43) was that
international solidarity as an instrument for the attainment of human rights was a fact of
international life that needed further development. In paragraph 37 (c) of the paper, Mr.
Baltazar proposed a preliminary work plan, in which he recommended “studying the new
international context, the new challenges and the need to define principles, objectives and
priorities conducive to clarifying responsibilities in the field of international solidarity and
human rights”. That working paper and the subsequent work of the previous Independent
Expert, Rudi Muhammad Rizki, were inspired by the historical and philosophical
foundations of and, to a certain extent, the link to international law, and by the principle of
international solidarity and its value in international relations, which would lay the basis for
the right to international solidarity.
4. In her first report to the Council after her appointment as the second mandate holder
for human rights and international solidarity, the current Independent Expert mapped out
her work plan in three stages. Her work, in brief, would shift the focus from international
solidarity as a principle to international solidarity as a right, in order to develop and work
towards a draft declaration on the right of peoples and individuals to international
solidarity. The process of developing and preparing the proposed draft declaration, leading
to its subsequent submission in June 2014 to the Human Rights Council, is described in
detail in the previous report of the Independent Expert (A/HRC/26/34). The draft, as it
currently stands, is a consolidation of the work done by the present Independent Expert and
her predecessor, as well as inputs and suggestions from States, civil society, experts from
academia and the United Nations human rights mechanisms, including the Human Rights
Council Advisory Committee.
5. The Council consequently decided that the text of the proposed draft declaration
should be the focus of a series of the regional consultations, which were eventually
conducted in 2015 and early 2016. Regional consultations were held with representatives of
Western Europe and Other States, and of Eastern Europe States, in Geneva; African States
in Addis Ababa; Latin American and Caribbean States in Panama City; Asia-Pacific States
in Suva; and Middle Eastern and North African States in Doha.
B. Objectives and expected outcome
6. In configuring the regional consultations, the Independent Expert selected from the
more challenging issues, which were translated into topics and themes on which the invited
panellists were requested to speak, and on which other participants were encouraged to
reflect, with a view to discussing and formulating suggestions and recommendations to
improve the text of the proposed draft declaration. The expected outcome of each of the
consultations was a compilation of inputs to guide the Independent Expert in the
preparation of her summary report to the Human Rights Council at its thirty-second session,
and to assist her in finalizing the proposed draft declaration.
7. The objectives of the regional consultation were to enable participants:
(a) To discuss the text of the proposed draft declaration with regard to its logic,
structure and content;
(b) To provide concrete inputs regarding the text of the proposed draft
declaration, with a view to clarifying issues that were seen to stem from the text;
(c) To put forward further recommendations for implementation on the ground
of the right to international solidarity.
C. Format and modality
8. The two-day consultations consisted of a number of panel presentations and
discussions. The participants were then invited to offer comments of a general nature and to
freely discuss the concept, structure and substance of the proposed draft declaration.
Panellists for each consultation were requested to speak on specific topics to initiate
discussion. Where possible, experts were invited on the basis of their experience relating to
the implementation of government policies, including in the areas of sustainable
development, poverty reduction, food security, public health, international development
cooperation, trade, finance, environmental protection, and natural disaster risk reduction
and management. The consultations were conducted in English with simultaneous
interpretation into the lingua franca of the region, where appropriate.
9. In each of the regional consultations, a representative of OHCHR was present to
provide information on the concept and background of the consultations, formally introduce
the Independent Expert and welcome the participants to the consultation. At the beginning
of each consultation, after the opening session, the Independent Expert introduced the
proposed draft declaration and explained the background, objectives and expected outcome
of the consultation. She underscored that, because international solidarity was implemented
through international cooperation, it was important to recall that the nature of international
cooperation as a duty of States required the examination its impact on the capacity of States
to comply with and to fulfil their international human rights obligations. The summary
below does not include the introductory sessions.
10. The present report does not include the detailed inputs from the participants shared
during the individual review of the articles contained in the draft text. These inputs will be
reflected in the revision of the draft text before being presented to the Human Rights
Council in 2017. Furthermore, in the interest of the objectives of the consultations, the
present report provides only brief summaries of the presentations, to give ample space to
the major highlights of the various comments and recommendations of a general nature on
the concept, structure and substance of the proposed draft declaration during each of the
five regional consultations.
II. Western European and other States region, and Eastern European region
11. On 20 and 21 April 2015, the regional consultation with representatives of Western
European and other States, as well as Eastern European States, was convened by the
Independent Expert in Geneva. The consultation was attended by 19 participants, among
them representatives of six States, and the European Union, and experts from the United
Nations treaty body system and from the Human Rights Council special procedure
mechanisms. Representatives of OHCHR, members of civil society, including academia,
and representatives of non-governmental organizations were also present.
12. Opening remarks were delivered by the Chief of the OHCHR Development and
Economic and Social Issues Branch, who stressed that international solidarity was a crucial
principle in addressing current global issues and tragedies. He stated that the time had come
for a serious discussion on international solidarity and human rights, based on existing
provisions of international human rights law. He reaffirmed the commitment of OHCHR to
supporting that initiative and advancing international solidarity for the realization of all
human rights—civil, political, economic, social and cultural, including the right to
development.
A. Panel presentations and discussion on human rights and international
solidarity
13. The presentations addressed issues relating to the foundations of international
solidarity in existing international law; the extraterritorial application of human rights law
to the issue of international solidarity; the rights and obligations arising from international
solidarity; and international solidarity in the light of the International Covenant on
Economic, Social and Cultural Rights.
14. During the presentations, it was reiterated that international solidarity was not
limited to international assistance and cooperation, charity and humanitarian assistance. To
illustrate the principle of international solidarity and its legal basis, details of various
articles from international human rights treaties and relevant United Nations declarations
and resolutions were extensively cited. The Maastricht Principles on Extraterritorial
Obligations of States in the Area of Economic, Social and Cultural Rights were discussed to
explain the potential and limitations of human rights law as it related to the extraterritorial
obligations of States. Human rights law relating to international cooperation to combat
poverty was identified as the area in which the extraterritorial obligation of the State to
provide assistance to enable the realization of economic social and cultural rights could be
established. Although a declaration on a right to international solidarity could be built
around the existing framework of the law on cooperation that governed the relationship
between States and the United Nations, framing it as a right remained challenging. It was
stressed that, in order to promote the implementation of solidarity-based cooperation, due
attention should be given to the principle of sovereignty. The jurisprudence of the
Committee on Economic, Social and Cultural Rights was highlighted in relation to
international cooperation as a duty of States. The Committee had constantly reiterated that
international cooperation assistance had to be implemented within the framework of the
systematic application of the core human rights principles.
15. After the panel presentations and discussion, participants were divided into groups
to enable more in-depth discussions and to ensure active participation by all. The groups
discussed integrating human rights in international cooperation and the role of international
solidarity in the exercise and fulfilment of human rights.
B. Comments and recommendations of a general nature on the proposed
draft declaration
16. The following are highlights of the major issues, comments and recommendations of
a general nature on the concept, structure and substance of the proposed draft declaration:
(a) In general, the principle of international solidarity was closely linked to the
international law of cooperation, but two important questions were raised from the outset.
One was whether the purpose of the declaration was to establish a right to international
solidarity as a claimable right or as a principle with moral force. The other was whether the
right to international solidarity was a right from which to benefit or a right to demand the
application of the principle of international solidarity;
(b) On the premise that a declaration on the right to international solidarity was
premature at this point, the possibility of a step-by-step approach was discussed wherein
there would first be a “declaration on international solidarity”, which would be developed
progressively and systematically to become a “declaration on the right to international
solidarity”;
(c) Extraterritorial obligations of States and national sovereignty were identified
as key concepts in the discussion on a right to international solidarity. In that connection, it
was highlighted that the process of developing a declaration on the right to international
solidarity would encounter challenges, as it could be interpreted as an attempt to establish
obligations for States to provide assistance, leading to a shift in the model of State
cooperation as related to development assistance;
(d) A right to international solidarity could reinforce the principle of
international solidarity, which was generally agreed upon. More than just being a principle,
the right to international solidarity could be derived directly from the Charter of the United
Nations and the Universal Declaration of Human Rights, which enshrined the values of the
human family, as well as equality and equity. A right to international solidarity could
therefore be developed as an enabling right for the fulfilment of all other human rights in
the context of a globalized world;
(e) The draft declaration should explicitly refer to all international actors,
including transnational businesses and intergovernmental organizations, and clearly
articulate their roles and obligations;
(f) The right to international solidarity should be more precisely defined,
identifying mechanisms for enforcement, inter alia, by developing guidelines describing the
role of different stakeholders and giving clear examples of actions to enforce a right to
international solidarity;
(g) The right to international solidarity should cover all human rights, including
economic, social and cultural rights, as well as civil and political rights. The proposed draft
declaration should also refer to intergenerational equity, which was a principle that needed
to be strengthened in the international legal framework. Furthermore, a more general
reference should be reflected in the text regarding the fundamental rights of women beyond
those relating to gender-based violence;
(h) Although international solidarity was widely practised among States, it was
important to stress that States had the primary responsibility for the human rights of
individuals within their sovereign territory. Furthermore, doubts were expressed about
whether the principle of international solidarity could be translated into the language of
rights, since it was not perceived as meeting the requirement of a legal concept and that of a
human right as such. It was also stated that the concept of international solidarity remained
too vague. Concern was raised about whether such an attempt to formalize international
solidarity as a human right would create the risk that rhetoric might take the place of legal
content, therefore undermining the principle of international solidarity. It was suggested
that the Independent Expert take into consideration the fact that, at present, there was no
consensus within the Human Rights Council regarding the project of developing a draft
declaration on the right of peoples and individuals to international solidarity;
(i) The text should be shortened and the preamble paragraphs reduced but
devoted to laying out the existing legal framework and the rationale for a right to
international solidarity. Definitions, including that of the principle of international
solidarity, should be in the operational part of the declaration. Furthermore, the operational
paragraphs should start by defining the right to international solidarity;
(j) The current structure of the proposed draft declaration was deemed to have
too much resemblance to that of a convention, with the articles delineating rights and
obligations. Use of a more traditional format for declarations would be more beneficial to
the process. The text should be a clear statement, accompanied by a commentary, in the
typical format of a United Nations declaration. It was added that guidelines might be useful
to explain the practice of States and non-state actors in implementing international
solidarity;
(k) The draft declaration should use more assertive and affirmative language,
with precise references to existing instruments that embody the principle of international
solidarity. The point was made that customary law that could be discerned based on the
practices of States should be consolidated into a formal legal framework in the draft text.
III. African region
17. On 21 and 22 July 2015, the second consultation was convened by the Independent
Expert in Addis Ababa, a few days after the conclusion of the third International
Conference on Financing for Development, held in the same city from 13 to 16 July 2015.
There were 30 participants, including representatives of 10 African States, the African
Union Commission, the African Commission on Human and Peoples’ Rights, United
Nations entities, United Nations treaty bodies and civil society, including
non-governmental organizations and academia.
18. The acting Regional Representative of OHCHR for East Africa delivered the
opening remarks, welcoming the initiative to hold the consultation in Addis Ababa, where
African cooperation and solidarity fell within the framework of the African Union. He
affirmed the relevance and timeliness of the consultation in the light of recent events,
including the Ebola crisis in West Africa. He added that international solidarity was closely
linked to the current discussion on the post-2015 development agenda, and most especially
to the issues discussed at the third International Conference on Financing for Development.
A. Panel presentations and discussion on human rights and international
solidarity
19. Presentations were given on the topics of international human rights law and
international solidarity; international solidarity as understood in the framework of the
Convention on the Rights of the Child; international solidarity in international relations;
financing for development and international solidarity; and international solidarity and
climate justice.
20. The panel presentations, while providing an overview of the international legal
framework for human rights and international solidarity, also covered the implications of
international solidarity in related areas of concern. It was pointed out that international
solidarity could be derived from traditional values such as the African world view known as
ubuntu, which meant “I am who I am because of you”. Ubuntu embodied solidarity as a
principle that underpinned the African Charter on Human and Peoples’ Rights. Relevant
articles of the Convention on the Rights of the Child were discussed, especially the ones
calling for international cooperation for the universal realization of the rights of the child as
an obligation of States, not only at the national level but also outside their sovereign
boundaries. Regional instruments were identified as key to the implementation of
international solidarity as a bottom-up process. A panellist presented international solidarity
as a core principle of the African Charter and indicated that the obligation of solidarity
should be read along with article 29 of that Charter, which promoted African unity. While it
was recognized once again that States were the primary duty bearers for the protection and
promotion of all rights, the role of regional organizations in that regard was also
highlighted.
21. Discussions on globalization touched on its definition as “the manner in which the
world simultaneously grows closer together and further apart in economics, politics,
communications and a host of other areas”, implying that there were both positive and
negative aspects to that phenomenon. In that connection, extraterritorial obligations were
identified as serving a useful purpose, as they consolidated the obligations of States, both
within and outside their geographic spheres of influence. During the discussion on the
outcome of the third International Conference on Financing for Development, it was
suggested that the text of the proposed draft declaration could capture the shortfalls that had
been identified, including the lack of a firm commitment to structural change in
development aid, for example in the effective implementation of the 0.7 per cent
benchmark for official development assistance. Concern was raised about the consistent
failure of international mechanisms to address key emerging challenges, such as the grave
human rights impacts of climate change, that disproportionately affected vulnerable
populations in countries with limited capacities and resources. In addition to efforts at the
international level, cooperation needed to be established at the regional level, while
integrating a human-rights-based approach in tackling the adverse effects of climate
change.
B. Comments and recommendations of a general nature on the proposed
draft declaration
22. The following issues, comments and recommendations of a general nature were
highlighted:
(a) Four approaches were put forward for the Independent Expert to consider in
moving the draft declaration forward: (i) understanding international solidarity as a
precondition for the realization of rights wherein States should work together to achieve
self-sufficiency; (ii) defining international solidarity solely as a principle which should
shape international relations and cooperation; (iii) posing international solidarity as a value,
devoid of any legal content, wherein, although there was no legal duty on the part of
various actors to take collective action, there was a moral obligation to do so,
preconditioned on the premise that, as a moral rule of action, States should consider the
impact of their action and non-action, and not only their own self-interest; and (iv)
establishing international solidarity as a right, with clear reference to the extraterritorial
obligations of States;
(b) In order to respond to the often expressed scepticism, it was suggested that
existing and agreed upon international human rights language should be used in the
proposed draft declaration;
(c) A greater emphasis on the extraterritorial obligations of States would benefit
the proposed draft declaration and strengthen its added value;
(d) A proposal was put forward to identify States as being not only duty bearers
but also rights holders. While attending States were generally in support of that idea, some
scepticism was expressed from the perspective of international human rights law;
(e) A suggestion was made to slightly modify the title of the proposed draft
declaration in order to move towards a consensus, by removing the reference to “peoples”
and simply making a reference under the appropriate article describing rights holders;
(f) Another proposal was made to organize the draft text into four subheadings
for enhanced clarity and to divide the text as follows: (i) the concept, principle and
elements of international solidarity; (ii) the right to international solidarity, rights holders
and duty bearers; (iii) implementation with a human-rights-based approach; and (iv)
negative obligations;
(g) The preamble should be less dense but lay out additional references to very
specific internationally agreed upon human rights provisions in order to recall that a right to
international solidarity was directly derived from the existing legal framework. It was
further suggested to consider the use of the term “positive solidarity” to distinguish it from
negative solidarity, which led to human rights violations. In that context, a general
reference to terrorism would be necessary as an example of negative solidarity;
(h) The term “non-state actors” was identified as potentially problematic in
international human rights law. That concern needed clarification while taking into account
that States were the subject of international law while non-state actors were not.
IV. Latin American and Caribbean region
23. On 22 and 23 September 2015, the third regional consultation was convened by the
Independent Expert in Panama City. There were 35 participants, including 10
representatives of Latin American and Caribbean States, regional representatives of United
Nations entities, including OHCHR, and representatives of academia and non-governmental
organizations.
24. A representative of Panama delivered welcoming remarks, stating that, at the
international level, solidarity must be seen as the way in which different States achieved
cohesion and could accomplish common and collective goals. He underscored the great
importance to Panama of the process of regional consultations on the proposed draft
declaration and, as host of the event, invited the Latin American and Caribbean countries
present to renew their commitment to cooperation and solidarity and to actively contribute
during the consultation process.
25. The OHCHR Regional Representative for Central America, in her opening remarks,
welcomed the initiative, which she noted was aimed at involving local, regional and
international actors in the dialogue on human rights and on broader issues such as
participation and international cooperation. She highlighted several of the regional and
subregional mechanisms in Latin America and the Caribbean that could be considered
positive examples of the practice of international solidarity through international
cooperation.
A. Panel presentations and discussion on human rights and international
solidarity
26. The first panel addressed the topics of international solidarity in international law,
with perspectives from the Latin American and Caribbean region, and regional human
rights cooperation from the perspective of the Inter-American Commission on Human
Rights. The presentations highlighted how the region provided fertile ground for support for
the proposed draft declaration, owing to several historical and cultural factors. Several
crises in the region had served to galvanize States in the region to undertake collective
action to help each other surmount challenges and difficulties, and illustrated that the
practice of solidarity was not only possible but also effective. Presentations stressed that it
was essential, while undertaking technical cooperation and international solidarity, to
engage in meaningful consultation with local society and indigenous peoples. The view was
expressed that the objective of international solidarity should be to prevent human rights
denials and violations. It was also stated that, if human rights were truly at the centre of
international initiatives, many of the current crises would not be persisting.
27. The second panel addressed the role of international solidarity in advancing
socioeconomic development, solidarity and cooperation in environmental protection and
climate change, and stakeholder participation in regional integration processes and
international development cooperation.
28. The panellists discussed a number of issues relating to international solidarity in the
region. Attention was drawn to the continuing need for debt relief in the Caribbean
countries, and to the issue of lack of participation and transparency in setting taxation
principles and standards. It was noted that international migration had to be given more
prominence in the discourse on social protection. The Economic Commission for Latin
America and the Caribbean had played a major role in promoting public policies that were
based on equality, human rights and solidarity in the region, which arguably had the highest
level of income inequality in the world. It was stressed that solidarity was needed first and
foremost within societies at the country level. In that regard, it was remarkable that all
mechanisms of regional integration in Latin America, from the oldest to the most recent,
referred to the participation of civil society and other actors. Thus, the “multiple actors”
dimension should be considered as a prominent element in the practice of solidarity in the
region. It should also be recognized that the South-South cooperation model was the most
notable contribution of the Latin American and Caribbean region to international
development cooperation.
29. The third panel focused on the structural dimension of the realization of the right to
international solidarity and the implementation of the “solidarity diplomacy” of Brazil. It
was stressed that the reality of a country’s economic situation played a key role in the
capacity of the State to fulfil its international human rights obligations, especially its core
obligations that were immediate, and the progressive realization of other rights. That reality
was linked to the duty of international cooperation, which in human rights terms was
undertaken precisely to assist a State that lacked the resources to comply with its human
rights obligations. In that sense, the recognition of a right to international solidarity was
perceived as possibly leading towards the fulfilment of other human rights. The example
was given of the inclusion of the right to food as a human right in the Constitution of Brazil
in 2010 as a significant step towards the broader realization in the country of other rights as
well. Brazil had put solidarity at the centre of its diplomatic practice through horizontal
cooperation partnerships. The importance of decentralization was also stressed, with an
emphasis placed on how non-state actors at the local level could more actively promote
international solidarity as a tool for the exercise and fulfilment of human rights.
Furthermore, humanitarian cooperation was identified as a better means than aid or
assistance for undertaking collective action and building equal partnerships.
B. Comments and recommendations of a general nature on the proposed
draft declaration
30. Highlights of the major issues, comments and suggestions of a general nature are
summarized in the following paragraphs:
(a) A suggestion was made that the draft text should explicitly state at the outset
that the purpose of international solidarity was to ensure the protection of human rights.
That would establish the road map for the declaration and its content. The proposed draft
declaration should be seen as seeking to transform the world instead of being perceived as
seeking to “preserve the order”, as the text currently states. The Independent Expert should
recall the two elements that constitute international law in the Charter of the United
Nations, namely its codification and progressive development, so that she could clearly
articulate that the right to international solidarity was founded on the progressive
development of law and was codified in international human rights treaties;
(b) Furthermore, it was proposed that the Independent Expert consider making a
strategic decision on whether to follow a minimalist position in developing the text in order
to have a “consensual common denominator”, or strive for a more comprehensive text, in
which case there might be a risk of losing broader consensus;
(c) The need for more conceptual clarity in the document was pointed out several
times, since it was observed that the text was occasionally inconsistent and contradictory. In
that regard, many participants expressed the view that the obligation of States and non-state
actors would require further review for precision. The Independent Expert was once more
advised to also refer to regional charters in the preamble, noting that several regional
organizations, including the Organization of American States and the African Union, had
incorporated the principle of international solidarity into their founding documents;
(d) Moreover, the preamble should indicate international instruments that
addressed environmental rights and that made reference to international cooperation and
solidarity, like the Rio Declaration on Environment and Development. Similarly, it was
noted that the reference in the preamble and throughout the text should be to the broader
aspects of climate change and not limited to global reduction of greenhouse gas emissions;
(e) In relation to structure and approach, it was recommended that the preamble
be shortened, as it accounted for one fourth of the current text of the proposed draft
declaration. In that regard, some elements of the preamble could be restated as operational
paragraphs and dealt with more directly and be more action-oriented. The proposed draft
declaration should be more concise in its wording and messages;
(f) It was suggested that references to both hard and soft international law, as
well as to other sources of law, be included, such as the jurisprudence developed by the
Committee on Economic, Social and Cultural Rights, which had contributed to the
development of human rights. The jurisprudence of the Inter-American Court of Human
Rights, which had developed concepts closely linked to international solidarity, was also
cited;
(g) The need for more precise identification of “non-state actors” was once more
underscored. It was pointed out that the term could loosely apply to business entities,
non-governmental organizations or even terrorist organizations. Non-state actors were once
again said to not be typical actors in international law, and therefore the way they were
currently referred to in the proposed draft declaration was not in line with international law.
In that regard, international law and the rules of interpretation of the Vienna Convention on
the Law of Treaties that established the obligations of States when discussing duty bearers
should be carefully taken into account. It would be preferable for the subject of human
rights to be individuals, peoples and communities, rather than the current list contained in
the text;
(h) The general view was that, while the State could not be held responsible for
acts or omissions of the private sector, it had the responsibility to enforce national laws and
therefore the obligation to ensure that the private sector fulfilled its national and
international obligations under labour, environmental and human rights law. The State was
accountable when it failed to investigate, prevent or sanction the conduct of the private
sector acting in its territory, in line with the existing jurisprudence of relevant human rights
mechanisms;
(i) Differing positions were voiced by participants in relation to who was
considered a rights holder. As in the consultation with African States, some were of the
view that States should also benefit from the right to international solidarity, while others
argued against the inclusion of the right of States to international solidarity in the context of
that draft. It was further highlighted that, while States might wish to negotiate a convention
on the right of States to international solidarity, it would need to be negotiated in another
type of forum. Others expressed the view that the text should consider individuals as the
sole rights holders;
(j) Finally, the importance of considering the issue of decentralization in the
proposed draft declaration was again stressed, and it was argued that international solidarity
should be recognized at all levels, most especially at the local level, where the right to
participation was central to the practice of international solidarity.
V. Asia-Pacific region
31. The fourth regional consultation was convened by the Independent Expert in Suva
from 18 to 19 November 2015. There were 18 participants, including a State representative,
members of the national human rights institution of Fiji, representatives of United Nations
agencies, including OHCHR, and civil society, including academia and non-governmental
organizations.
32. Welcoming remarks were delivered by the OHCHR acting Regional Representative
for the Pacific region, who underscored that the principle of international solidarity was
especially relevant to the Pacific region, where low-lying coastal States were facing
increasing challenges due to climate change. She noted that most Pacific States were in
great need of support in building climate resilience and mitigating the impact of natural
disasters, in addition to working towards meeting the Sustainable Development Goals. She
stressed that environmental degradation and the resulting negative impact on the realization
of human rights demanded collective action. Mention was made of the high risk of
migration in the region due to natural disasters, which could possibly lead to further human
rights violations, as receiving countries might struggle to cope with a significant influx of
migrants. She expressed her deep appreciation to the Independent Expert for choosing to
hold her consultation in the Pacific, closer to the small island developing States that were
often left out of international discussions mainly because of their remote location and the
difficulty of travelling there.
A. Panel presentations and discussion on human rights and international
solidarity
33. The first panel discussion addressed international human rights law and international
solidarity, along with international cooperation and the duty of States regarding the
realization of human rights. These presentations brought out a number of key points,
including the fact that a right to international solidarity could be understood as a
transformative toolkit, in the spirit of the new Sustainable Development Goals, for the
implementation of international cooperation in the best interest of all, leaving no one
behind. Solidarity was said to be part of the values of democratic societies and ultimately
also reflected in the practices of States at the regional and international levels. From the
perspective of international relations, there could be more than one understanding of the
incentives or motivations of States with regard to cooperating in the field of human rights.
From that followed the suggestion that it was important, while reviewing the draft
declaration, to reflect on what incentives could be given to motivate States to uphold
international solidarity. It was highlighted that, generally, agreements on solidarity only
lasted as long as they benefited the parties engaged. For example, States might use
advocacy for human rights to increase soft power, or might perceive solidarity and human
rights as a means of enhancing their prestige or image.
34. The second panel focused on climate change and common but differentiated
responsibilities, protecting cultural heritage from the adverse effects of climate change,
international solidarity and the global partnership for development, accountability for
international development funds, regional solidarity in relation to the Framework for
Pacific Regionalism, and national solidarity and the role of civil society in building
resilience. The presentations touched on various issues relevant to the Pacific region, some
of them also linked to global issues. The view was expressed that the principle of common
but differentiated responsibility with regard to environmental degradation, which embodied
the principle of international solidarity, was a source of tension among States in the United
Nations system. The notion of extraterritorial obligations of States also meant holding those
responsible for environment-related crises in other countries accountable, including the
so-called “big polluters” that were domiciled within those States. It was highlighted that
environmental degradation could have an irreversible impact, leading to the loss of not only
tangible cultural heritage, but also intangible cultural heritage, such as living traditions,
through the movement and displacement of populations. Relocation of communities was
identified as a possible cause of the loss of traditional cultural practices, collective identity
and a sense of belonging. Moreover, the preservation of the cultural heritage of local
communities was said to be a critical element in building resilience linked to disaster
management and adaptation in response to extreme climate conditions. Adaptation also
required a change in the way States interacted with each other; a right to international
solidarity would provide lasting guiding standards. Examples were given of the work being
done by Vanuatu to strengthen institutional capacity and good governance, including
mechanisms for international aid accountability, through the insertion of anti-corruption
clauses in aid agreements and the improvement of financial management and transparency
concerning public aid. The Framework for Pacific Regionalism, adopted in 2014, was
presented. It was underscored that the Framework articulated a regional vision integrating a
set of regional values to guide policymaking and implementation, including the promotion
and protection of human rights, to achieve the four goals of economic growth, sustainable
development, good governance and security. Key features of that framework included the
emphasis on political decisions, and inclusiveness and consultation in framing policies for
regional action, thereby promoting a participatory process. The establishment of a specialist
advisory board, composed of independent representatives, to review proposals and define
the agenda of the region was also mentioned. That approach was portrayed as reflecting
solidarity at the regional level.
B. Comments and recommendations of a general nature on the proposed
draft declaration
35. Highlights of major issues, comments and suggestions of a general nature are
summarized as follows:
(a) It was said that the preambular paragraphs should provide an overview of the
benefits of the draft declaration, and include how translating the principle of international
solidarity into a right would add value to the human rights framework, making it more
meaningful to people on the ground;
(b) Once more a proposition was made to include in the preambular paragraphs
the outcomes of the more recent major United Nations conferences, such as the United
Nations summit for the adoption of the post-2015 development agenda, the Climate Summit
and the third International Conference on Financing for Development. The preambular
paragraphs should also contain a rationale for how a right to international solidarity could
provide a coherent conceptual and operational framework for regulating the spectrum of
governance issues, including the negative impact of corruption and bad governance on
development cooperation;
(c) It was stressed that mechanisms of accountability were key to ensuring that
solidarity cooperation addressed inequality and discrimination and that development aid
reached intended beneficiaries to fulfil its purpose. Thus, the principle of accountability
should be given more prominence by referring to it in the preambular paragraphs. Specific
applications of accountability could then be dealt with in the relevant articles;
(d) It was once again suggested to rearrange the operational paragraphs and place
them under three or four appropriate subheadings for better conceptual logic and easier
reading;
(e) The recurring concerns about non-state actors were again raised, with an
emphasis on the need for the accountability of non-state actors to be differentiated from that
of the state, and for the term to be more precisely defined;
(f) Considering the approach that national practices of solidarity could promote
international solidarity, it was suggested that the proposed draft declaration refer
specifically to the role of independent national human rights institutions in the protection
and promotion of international solidarity at the national level;
(g) It was stressed that climate and environment issues linked to the
extraterritorial obligations of States deserved a stand-alone paragraph under the operational
paragraphs;
(h) The Independent Expert was requested to consider including in the draft,
references to issues of foreign debt, as well as the rights of women and lesbian, gay,
bisexual, transgender and intersex persons.
VI. Middle East and North Africa region
36. The fifth and last consultation, for the Middle East and North Africa Region, was
convened by the Independent Expert on 11 and 12 January 2016 in Doha. Participants from
Asia who had been unable to join the Asia-Pacific consultation were also invited to attend.
There were 33 participants, including representatives of 11 States, the National Human
Rights Council of Morocco, the Association of Southeast Asian Nations (ASEAN)
Intergovernmental Commission on Human Rights and the Indonesian national commission
for human rights, as well as United Nations experts and representatives of OHCHR and
civil society, including academia and non-governmental organizations.
37. In giving welcoming remarks, the chief of the Middle-East and North Africa Branch
of OHCHR underscored how the consultation presented a good opportunity to address the
conceptual and practical challenges of international solidarity, a principle that underpinned
many international provisions, including human rights law.
38. Opening remarks were made by the Director of the Human Rights Department of the
Ministry of Foreign Affairs of Qatar. He highlighted that, in the spirit of the new 2030
Agenda for Sustainable Development, according to which no one should be left behind, the
foreign policy of Qatar was aimed at advancing international cooperation for the realization
of global peace and security, as well as enhancing development through a
human-rights-based approach.
A. Panel presentations and discussion on human rights and international
solidarity
39. The presentations of the first panel addressed the existing legal framework on
human rights and international solidarity; international cooperation for the realization of
human rights and the extraterritorial obligations of States in the field of human rights;
international sustainable development law and the principle of international solidarity; and
international solidarity and its role in the work of regional human rights mechanisms.
40. In the presentations, international human rights law was once again revisited in the
context of the place of international solidarity in today’s global challenges. It was said that
solidarity had evolved positively over time, away from a purely individual and charitable
perspective into an explicitly recognized and valued element of social cohesion at the
national level. The difficulty of putting solidarity into practice at the international level did
not derive from the lack of a legal framework but rather from a limited understanding of the
need and the potential of international solidarity for all countries, and the lack of political
will on the part of States to undertake all measures necessary to make human rights a reality
for the everyday lives of everyday people. Yet, the Universal Declaration of Human Rights
had set out for the first time that fundamental human rights were to be universally protected
and that everyone was entitled to a social and international order in which the rights and
freedoms set forth in the Declaration could be fully realized. The International Covenant on
Economic, Social and Cultural Rights, in which a number of those rights had been codified,
required States parties to achieve progressively the full realization of the rights recognized
in the Covenant by all appropriate means, including in particular the adoption of legislative
measures. International human rights law was not the sole source of the extraterritorial
obligations of States and their constituent parts. Looking at international norms as an
integrated system, one found multiple sources of legal regimes that supported the notion of
an obligation to govern cross-border relationships in a way that was consistent with
international law and world order. From those could be inferred a right borne by all, in
particular victims of gross human rights violations, to effective countermeasures. Local
governments had developed practices in the exercise of their extraterritorial obligations
through the application of non-recognition and non-cooperation with state and non-state
actors who were in violation of international human rights standards. Concrete examples
were provided to illustrate the assertion that the evolution of international solidarity was at
an important crossroads. The point was also made that solidarity was just as essential to
implementing two other principles presently not covered in the draft declaration: common
but differentiated responsibilities for the global environment, and responsibility-sharing
with regard to refugees. Both of those principles were significant in the context of the
Middle East and North Africa region, which had the largest forcibly displaced population in
the world, as had already been the case even before the Syrian conflict. There was an urgent
need for solidarity and the honouring of international commitments under the United
Nations Convention relating to the Status of Refugees of 1951. It was highlighted that the
majority of refugees in the current crisis were being helped by the poorer nations of the
world; those least able to do so were the ones taking action.
41. The four priority areas of ASEAN were delineated as including migration,
particularly irregular migration, environmental issues, territorial conflicts and the rising
threat of terrorism in the region. It was said that a right to international solidarity might face
a negative fate if not reconciled with the principle of sovereignty. It was pointed out that
there was no explicit reference to regional organizations and mechanisms in the current
draft, be they supranational or intergovernmental, which should be considered and more
explicitly identified as duty bearers, with a view to enhancing their role in promoting
international solidarity. It was stressed that valuable lessons could be learned from the
experiences of other regions in dealing with those issues. Further suggestions were made to
include relevant provisions from regional mechanisms. Reference was made to the African
Charter on Human and Peoples’ Rights, especially to its provision stipulating that “the free
disposal of wealth and natural resources shall be exercised without prejudice to the
obligation of promoting international economic cooperation based on mutual respect,
equitable exchange and the principles of international law”.
42. The presentations in the second panel were on the role of national human rights
institutions in the promotion of international solidarity; solidarity and environmentally
sustainable development goals; and women and children in cross-border migration. During
the discussions, it was pointed out that the role of national human rights institutions could
be of particular importance with regard to preventive solidarity to safeguard human rights,
particularly in three areas: education and awareness raising, engagement in legislative and
policymaking processes, and monitoring. Attention was called to the importance of linking
the work of national human rights institutions at the international and regional levels and
enhancing cross-border networks of national human rights institutions. The view was
expressed that the environment should be perceived as a global public good and that related
issues should be addressed with the active involvement of all parties through partnerships
based on equal and cooperative relationships. The need for the response of civil society to
global issues to be coordinated and strong partnerships developed at the grass-roots level,
with a view to more effectively promoting the realization of sustainable development goals
and international solidarity from the ground up, was further underscored. The presentation
of international solidarity with regard to migration focused on the phenomenon labelled as
the externalization of borders, whereby some States required neighbouring countries to
exercise migration control in order to contain the influx of migrants. It was argued that this
type of partnership led to human rights violations and should therefore be denounced as
undesirable solidarity.
B. Comments and recommendations of a general nature on the proposed
draft declaration
43. The following are highlights summarized from the comments and recommendations
of a general nature, in particular those which should be included in the text of the proposed
draft declaration:
(a) It was once again suggested to take full advantage of the new 2030
Sustainable Development Agenda, especially goal 17, to advocate for the relevance of the
proposed draft declaration. Specific mention should be made of the importance of
international solidarity in addressing violence, extremism and terrorism. The need to
address the roots of those problems to sustain world peace should be stressed. A proposal
was made that a reference to individuals and peoples under occupation should be included
and that a specific mention should be made of refugees as being among the rights holders;
(b) It was stressed that international solidarity should be understood as the
confirmation of the already recognized necessity for a just international order, one that
promoted common development for all countries, based on sustainability, taking into
account the needs, capacities and interests of each region and country, with common but
differentiated responsibilities;
(c) The title “right of peoples and individuals to international solidarity” was
said to be more appropriate than the proposal to change it to “the right to international
solidarity”. As a human right for all, international solidarity would establish responsibilities
not only for States, but also for international organizations, peoples, individuals, civil
society and the private sector;
(d) It was said that the promotion of international solidarity must be carried out
by States and non-governmental organizations, principally through human rights education
and the recognition of the right to international solidarity as a fundamental human right.
The right to information on global actions and commitments was a shared responsibility of
state and non-state actors, which in turn led to the accountability of States, including not
only their actions within their own national boundaries but also their foreign actions and the
actions of international organizations of which they were a member;
(e) The preamble should serve to explain the gains to be made by developing a
right to international solidarity, including its potential impact on the realization of human
rights. In that context, it was important to refer in the second paragraph of the preamble to
the International Covenant on Economic, Social and Cultural Rights, as well as the
International Covenant on Civil and Political Rights;
(f) International humanitarian law should be included in the proposed draft
declaration. There was a need for the draft to cover all common global concerns, including
security concerns, in addition to economic, social and cultural rights;
(g) The principle of common but differentiated responsibility should be used to
clearly define international solidarity. International solidarity could be part of a fourth
generation of rights calling for a new international order;
(h) Any collective action undertaken for the sake of international solidarity
should advance the principles within the bounds of the Charter of the United Nations. The
proposed draft declaration should explicitly state that international solidarity cannot be
invoked and utilized in any way or by any actor to undermine human rights or to breach
international human rights treaties;
(i) The principles of business and human rights should be reflected in the draft
text and be linked to the responsibilities of private actors;
(j) Additional reference to General Assembly resolution 2625 (XXV), on the
Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States in accordance with the Charter of the United Nations, as well as
a reference to the unitary system of international law and peremptory norms, without
having to name all of them specifically, would be beneficial. It was stressed that the
international legal system was aimed at the people who were served by States and that
therefore people and individuals should remain the rights holders and States the duty
bearers;
(k) Finally, it was noted once again that there should be a more precise definition
of non-state actors. Civil society, including its responsibility with regard to promoting and
building international solidarity, should also be better reflected in the draft, and in the
operational paragraphs rather than in the preamble.
VII. Conclusions
44. The Independent Expert on human rights and international solidarity has
summarized in the present report the proceedings of the five regional consultations on
the proposed draft declaration. She wishes to express her gratitude to all those who
participated in the consultations: the States who sent their representatives; the
independent experts of the United Nations treaty body system and Human Rights
Council special procedures mechanisms; representatives of the United Nations
entities, including the Office of the United Nations High Commissioner for Human
Rights; and the human rights experts from regional and national institutions,
academia and non-governmental organizations. The Independent Expert expresses
her gratitude for their cooperation, assistance and willingness to engage, and for the
invaluable contributions they have made to this project.
45. The next step in the way forward in the work of the mandate of human rights
and international solidarity is to systematically organize the comments and
recommendations of a general nature on the concept, structure and substance of the
proposed draft declaration, and the specific inputs resulting from the review of
articles conducted in each of the five regional consultations. This consolidation is
under way, while at the same time the Independent Expert has been reflecting on each
comment and recommendation and giving consideration to the value it will add to
refining the proposed draft declaration.
46. The Independent Expert will consult and seek advice on issues relating to which
there may be conflict of opinion and/or issues of a legal nature may be involved. She
will then make a first attempt to revise the proposed draft declaration, informed by
the outcomes of the five regional consultations, as appropriate. Subject to the
availability of resources, the Independent Expert would like to convene an expert
meeting to examine the first revision of the document, with a view to giving specific
recommendations for its finalization before submission of a final draft declaration by
the end of her term in June 2017, as requested by the Human Rights Council in its
resolution 26/6.
47. The Independent Expert has noted a number of recurring issues that have
emerged from the regional consultations which have not been resolved, including the
qualification of “non-state actors” and the identification of rights holders and duty
bearers as having the right to international solidarity, and also the definition of the
right itself. The Independent Expert will give due consideration to all the recurring
issues and invite further inputs and suggestions in this regard. She will explore these
issues and their implications in the context of the proposed draft declaration in a
future thematic report.
48. The Expert will continue her consultations with States and other stakeholders.
She looks forward to their invaluable support, cooperation and assistance during the
process leading to the final draft declaration.