37/63 Report of the Independent Expert on the promotion of a democratic and equitable international order - Note by the Secretariat
Document Type: Final Report
Date: 2018 Jan
Session: 37th Regular Session (2018 Feb)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.18-01171(E)
Human Rights Council Thirty-seventh session
26 February–23 March 2018 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 the promotion of a democratic and equitable international order*
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the thematic
report of the Independent Expert on the promotion of a democratic and equitable
international order, Alfred de Zayas, pursuant to Council resolution 36/4.
* The annexes to the present report are circulated as received, in the language of submission only.
United Nations A/HRC/37/63
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Principles of international order .................................................................................................... 5
III. Obstacles to and recommendations for the progressive achievement of a democratic and
equitable international order .......................................................................................................... 7
IV. Recommendations from some of the previous reports of the Independent Expert ........................ 13
A. Reform of the Organization and its agencies ........................................................................ 13
B. International order and indigenous peoples .......................................................................... 13
C. Disarmament for development .............................................................................................. 13
D. Criteria for the exercise of self-determination ...................................................................... 14
E. World parliamentary assembly in consultative status with the General Assembly ............... 15
F. Investor-State dispute settlement arbitrations ....................................................................... 15
G. International trade and the growing power of transnational corporations ............................. 16
H. A treaty making the Guiding Principles on Business and Human Rights binding ................ 16
I. Tax evasion and tax havens .................................................................................................. 17
J. International financial institutions ........................................................................................ 17
K. Gender equality ..................................................................................................................... 19
V. Conclusions and recommendations ............................................................................................... 19
Annexes
I. A new functional paradigm on human rights ................................................................................ 21
II. Rule of law must evolve into rule of justice .................................................................................. 23
I. Introduction
1. The present report of the Independent Expert on the promotion of a democratic and
equitable international order is submitted to the Human Rights Council in compliance with
its resolution 36/4, requesting the Independent Expert to prepare a final report on his studies
conducted during the last six years of his mandate, and to share it with the Council at its
thirty-seventh session. In the report, the Independent Expert surveys his six previous reports
to the Council and his six reports to the General Assembly and makes recommendations on
issues addressed by the mandate, such as the models of democracy, the right of self-
determination, the social responsibility of business enterprises, bilateral investment treaties,
free trade agreements, military expenditure, tax evasion, reform of the United Nations
system and the obligations of intergovernmental organizations.
2. The Independent Expert recalls that the mandate was established pursuant to
resolution 18/6 of 29 September 2011, which laid down the terms of reference of a truly all-
inclusive rapporteurship for the promotion of a democratic, equitable and peaceful
international order, a universal goal that had already found expression in numerous General
Assembly resolutions following the historic resolution 3201 (S-VI) of 1 May 1974 on the
declaration on the establishment of a new international economic order, which reflects the
Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States annexed to General Assembly resolution 2625 (XXV) of 24
October 1970.
3. During the first six years of the mandate, the Independent Expert wrote 12 reports
addressing cross-cutting human rights issues pertinent to the realization of a democratic and
equitable international order, including various models of democracy, the right of self-
determination, the social responsibility of business enterprises, bilateral investment treaties,
free trade agreements, military expenditure, tax evasion, tax havens, tax competition,
enhanced coordination with international financial institutions, including the World Trade
Organization (WTO), the World Bank and the International Monetary Fund (IMF), national
and international protection of human rights defenders, including whistle-blowers, and the
reform of the United Nations system.
4. The 12 reports bear witness to the added value of the mandate as a holistic directive
to cast human rights in a coherent framework, which invites cross-fertilization with other
special procedure mandate holders. In the reports, the Independent Expert took due account
of the findings and recommendations of other rapporteurs and working groups, including
those on international solidarity, extreme poverty, the right to health, the right to food, the
right to housing, foreign debt, illicit financial flows, unilateral coercive measures,
indigenous peoples, business and human rights, mercenaries and arbitrary detention. The
Independent Expert also endorsed new standard-setting initiatives such as the Declaration
on the Right to Peace,1 the declaration on the rights of peasants and other people working in
rural areas,2 a binding legal instrument on transnational enterprises3 setting out minimum
social and environmental standards, the criminalization of environmental destruction, a
global bill of rights, an international court on human rights and the creation of a world
parliamentary assembly.4 In the reports, the Independent Expert highlighted the democratic
deficits in many fields and called for enhanced transparency and accountability by all
governmental and non-State actors. He also made clear that the exercise of power,
particularly economic power, should be subjected to some kind of democratic control, so
that the protective functions of the State were not undermined.
5. The mandate is both timely and necessary, especially since it illustrates the
interrelatedness and interdependence of human rights and the natural convergence of civil,
1 General Assembly resolution 71/189, annex.
2 A/HRC/19/75, annex.
3 See www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Session3/Pages/Session3.aspx.
4 See http://en.unpacampaign.org/394/uns-independent-expert-alfred-de-zayas-time-for-a-world-
parliamentary-assembly.
cultural, economic, political and social rights, and demonstrates that the so-called
“fragmentation” of international law does not permit circumventing the holistic application
of the Universal Declaration of Human Rights and the core human rights treaties. There can
be no “legal black hole” in the field of human rights, and in the twenty-first century the
international human rights treaty regime permeates all fields of activity and imposes duties
not only on States, but also on non-State actors. By joining the dots, this comprehensive
mandate gives concrete expression to the purposes and principles of the United Nations and
formulates pragmatic recommendations to States, intergovernmental organizations, non-
governmental organizations (NGOs), universities and other private actors. It is in this spirit,
that the Independent Expert campaigned in the diplomatic community for the creation of
the new mandates on the right to development and on the right to privacy. Today, the
Independent Expert calls for the establishment of new rapporteurships on the right of self-
determination and on the right to peace, both aimed at addressing grievances in a timely
fashion so as to promote local, regional and international peace and development.
6. In addition to drafting the reports, the Independent Expert has also issued more than
a hundred press releases and media statements — and some fifty longer essays or
“information notes” — that have sought to illustrate the variety of issues that have an
impact on the international order.
7. From 26 November to 9 December, the Independent Expert carried out the mandate
holder’s first official visit to the Bolivarian Republic of Venezuela and Ecuador.5 Among
the aims of the visit was to study how the alternative social and economic models of the
member States of the Bolivarian Alliance for the Peoples of Our America, in particular the
Bolivarian Revolution in Venezuela and the Citizens’ Revolution in Ecuador, have had an
impact on the international order, and vice versa. This two-country visit provided an
opportunity to explore the big picture challenges faced by all Governments, in particular
how economic, social and cultural rights can be given greater emphasis without restricting
the enjoyment of civil and political rights.6 Encouragingly, shortly after the visit, some
action had already been taken that was consistent with the preliminary recommendations of
the Independent Expert.7
8. It is to be expected that, over the coming years, the international order mandate will
continue to unfold its potential. Admittedly, achieving a democratic and equitable
international order requires overcoming formidable obstacles, including the misplaced
priorities of some Governments and international organizations, bias in favour of civil and
political rights, the prevailing “demophobia” in many countries in which Governments do
not respond to the wishes of their citizens and ban or even criminalize referendums, the
curses of positivism, selectivity and double standards and the propensity to go for short-
term solutions instead of addressing their root causes. Substantively, the continued
existence of secrecy jurisdictions, the impunity of transnational corporations, private
security companies and other private sector actors are continuing impediments.
9. In addition to tackling these concerns, future mandate holders may wish to address
the impact on a democratic and equitable international order of intergovernmental
groupings, such as the Group of Seven and the Group of 20, private associations, like the
United States Council on Foreign Relations, the World Economic Forum, the Bilderberg
Group and the Trilateral Commission, and others, which are sometimes perceived as
promoting world government outside the United Nations context,8 and the World Social
Forums since Porto Alegre, Brazil, in 2001.
5 See www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22457&LangID=E.
6 The report on these visits is due to be presented at the thirty-eighth session of the Council. A press
release following the mission is available at: www.ohchr.org/EN/NewsEvents/Pages/Display
News.aspx?NewsID=22531&LangID=E.
The preliminary observations of the Independent Expert are available at:
www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22530&LangID=E.
7 See www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22569&LangID=E.
8 See, e.g., Robert Eringer, The Global Manipulators (Bristol, Pentacle Books, 1980); Ian N.
Richardson, Andrew P. Kakabadse and Nada K. Kakabadse, Bilderberg People: Elite Power and
10. Major global challenges that should be studied from the international order
perspective include achieving the Sustainable Development Goals and the 2030 Agenda for
Sustainable Development, universal peacekeeping and the role of the United Nations
peacekeeping missions, the growing impact of globalization on the enjoyment of human
rights, the consequences of climate change, cultural imperialism, economic neocolonialism,
commodities speculation, vulture funds, and the unregulated activities of credit-rating
agencies and media conglomerates. It would also be important to explore how the great
world religions and non-denominational humanist and ethical unions could proactively
advance a more peaceful, more democratic and more equitable international order.
Moreover, the mandate holder might also explore the role of peoples’ tribunals in ending
impunity and helping to break the blackout on war crimes by the powerful. The mandate
would also benefit from additional country visits, although it remains largely
epistemological and primarily entails the creation and interpretation of norms with a view
to formulating pragmatic recommendations.
11. A democratic and equitable international order is one in which the Charter of the
United Nations is recognized as the world constitution, and the International Court of
Justice operates as the world constitutional court, with due deference to the Charter’s
“supremacy clause”. 9 Hitherto, the advisory competence of the Court has been
underutilized and the enforcement of its advisory opinions has been particularly
disappointing. It is imperative for the credibility of the Court and the United Nations itself
that States undertake to respect General Assembly resolutions as well as the Court’s
judgments and advisory opinions. Pursuant to the doctrine of “implied powers”, the Court
should also exercise the competence to issue advisory opinions motu proprio. Similarly, the
Secretary-General should be given the competence to ask the Court to issue advisory
opinions on legal issues requiring an authoritative judicial resolution.
12. A democratic and equitable international order necessarily functions on the basis of
multilateralism and international solidarity. It aims at promoting a culture of peace and
dialogue among nations and peoples, fully respecting the sovereignty of States and ensuring
that civil society in all countries has ample space to express itself and to enjoy its individual
and collective rights and pursue its traditions, culture and identity. It bears repeating that a
democratic and equitable international order is one in which peoples and nations enjoy
equitable representation, not only in the General Assembly, but also in regional and
international financial institutions, in which they can exercise their right of self-
determination, in which the right to peace is recognized in its individual and collective
dimensions and in which unilateral coercive measures are prohibited.
13. As the Heads of State and Government at the World Summit in September 2005
reaffirmed, democracy is a universal value based on the freely expressed will of people to
determine their political, economic, social and cultural systems and their full participation
in all aspects of their lives. They also stressed in the outcome document that democracy,
development and respect for human rights and fundamental freedoms were interdependent
and mutually reinforcing, and pointed out that, while democracies shared common features,
there was no single model of democracy.
II. Principles of international order
14. The reports of the Independent Expert have been guided by numerous General
Assembly resolutions, notably resolutions 2625 (XXV) and 3314 (XXIX), which, together
with the Charter, propound a vision of a democratic and equitable international order.
Based on the work of the mandate holder, the following should be generally recognized as
principles of international order:
Consensus in World Affairs (Abingdon, Routledge, 2011); and Holly Sklar (ed.), Trilateralism: The
Trilateral Commission and Elite Planning for World Management (Boston, South End Press, 1980).
9 This provides that the Charter should prevail in the event of a conflict between the obligations of
States as United Nations members and their obligations under other international agreements (Charter,
Article 103).
(a) Pax optima rerum.10 The noblest principle and purpose of the United Nations
is promoting peace, preventively and, in case of armed conflict, facilitating peacemaking,
reconstruction and reconciliation;
(b) The Charter takes priority over all other treaties (Article 103);
(c) Human dignity is the source of all human rights, which, since 1945, have
expanded into an international human rights treaty regime, many aspects of which have
become customary international law. The international human rights treaty regime takes
priority over commercial and other treaties (see A/HRC/33/40, paras. 18–42);
(d) The right of self-determination of peoples constitutes jus cogens and is
affirmed in the Charter and in common article 1 of the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural Rights.
The rights-holders of self-determination are peoples. The duty bearers are States. The
exercise of self-determination is an expression of democracy and attains enhanced
legitimacy when a referendum is conducted under the auspices of the United Nations.
Although the enjoyment of self-determination in the form of autonomy, federalism,
secession or union with another State entity is a human right, it is not self-executing.
Timely dialogue for the realization of self-determination is an effective conflict-prevention
measure (see A/69/272, paras. 63–77);
(e) Statehood depends on four criteria: population, territory, government and the
ability to enter into relations with other countries. While international recognition is
desirable, it is not constitutive but only declaratory. A new State is bound by the principles
of international order, including human rights;
(f) Every State has an inalienable right to choose its political, economic, social
and cultural systems, without interference in any form by another State. Already in 1510
the Spanish Dominican Francisco de Vitoria,11 Professor of Law in Salamanca, stated that
all nations had the right to govern themselves and could accept the political regime they
wanted, even if it was not the best;12
(g) Peoples and nations possess sovereignty over their natural resources. If these
natural resources were “sold” or “assigned” pursuant to colonial, neocolonial or “unequal
treaties” or contracts, these agreements must be revised to vindicate the sovereignty of
peoples over their own resources;
(h) The principle of territorial integrity has external application, i.e. State A may
not invade or encroach upon the territorial integrity of State B. This principle cannot be
used internally to deny or hollow out the right of self-determination of peoples, which
constitutes a jus cogens right (see A/69/272, paras. 21, 28, 69 and 70);
(i) State sovereignty is superior to commercial and other agreements (see
A/HRC/33/40, paras. 43–54);
(j) States shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State or in any other
manner inconsistent with the purposes of the United Nations (Charter, Art. 2 (4));
(k) States have a positive duty to negotiate and settle their international disputes
by peaceful means in such a manner that international peace, security and justice are not
endangered (Charter, Art. 2 (3));
(l) States have the duty to refrain from propaganda for war (International
Covenant on Civil and Political Rights, art. 20 (1));
10 Peace is the highest good (motto of the Peace of Westphalia, 1648).
11 See http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1325&context=ilj.
12 See www.academia.edu/7222085/The_Foundations_of_Human_Rights_Human_nature_
and_jus_gentium_as_articulated_by_Francisco_de_Vitoria.
(m) States shall negotiate in good faith for the early conclusion of a universal
treaty on general and complete disarmament under effective international control
(A/HRC/27/51, paras. 6, 16, 18 and 44);
(n) States may not organize or encourage the organization of irregular forces or
armed bands, including mercenaries, for incursion into the territory of another State;
(o) States must refrain from intervening in matters within the national
jurisdiction of another State;
(p) No State may use or encourage the use of economic, political or any other
type of measures to coerce another State in order to obtain from it the subordination of the
exercise of its sovereign rights and to secure from it advantages of any kind;
(q) No State may organize, assist, foment, finance, incite or tolerate subversive,
terrorist or armed activities directed towards the violent overthrow of the regime of another
State, or interfere in civil strife in another State;13
(r) The use of force to deprive peoples of their national identity constitutes a
violation of their inalienable rights and of the principle of non-intervention;
(s) The ontology of States is to legislate in the public interest. The ontology of
business and investment is to take risks to generate profit. A treaty that stipulates one-way
protection for investors and establishes arbitration commissions that encroach on the
regulatory space of States is by nature contra bonos mores. Hence, the investor-State
dispute settlement mechanism cannot be reformed; it must be abolished (see A/HRC/30/44,
paras. 8, 12, 17 and 53, and A/70/285, paras. 54 and 65);
(t) States must respect not only the letter of the law, but also the spirit of the law,
as well as general principles of law (Statute of the International Court of Justice, Article 38),
such as good faith, the impartiality of judges, non-selectivity, uniformity of application of
law, the principle of non-intervention, estoppel (ex injuria non oritur jus), the prohibition of
the abuse of rights (sic utere tuo ut alienum non laedas) and the prohibition of contracts or
treaties that are contra bonos mores. It is not only the written law that stands, but the
broader principles of natural justice as already recognized in Sophocles’ Antigone,
affirming the unwritten laws of humanity, and the concept of a higher moral law prohibiting
unconscionably taking advantage of a weaker party, which could well be considered a form
of economic neocolonialism or neo-imperialism (see annex II below);
(u) States have the duty to cooperate with one another, irrespective of the
differences in their political, economic and social systems, in order to maintain
international peace and security and to promote international economic stability and
progress. To this end, States are obliged to conduct their international relations in the
economic, social, cultural, technical and trade fields in accordance with the principles of
sovereign equality and non-intervention. States should promote a culture of dialogue and
mediation;
(v) The right to access reliable information is indispensable for the national and
international democratic order. The right of freedom of opinion and expression necessarily
includes the right to be wrong. “Memory laws”,14 which pretend to crystalize history into a
politically correct narrative, and penal laws enacted to suppress dissent are anti-democratic,
offend academic freedom and endanger not only domestic but also international democracy
(see A/HRC/24/38, para. 37);
(w) States have a duty to protect and preserve nature and the common heritage of
humankind for future generations.
13 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment. I.C.J. Reports 1986, p. 14. Available at www.icj-cij.org/files/case-
related/70/070-19860627-JUD-01-00-EN.pdf.
14 Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and
expression, para. 49.
III. Obstacles to and recommendations for the progressive achievement of a democratic and equitable international order
15. Since the beginning of the mandate, the Independent Expert has consulted with
members of permanent missions, intergovernmental organizations and NGOs, think tanks
and the academic communities of several countries in order to learn what they perceive as
obstacles to a more democratic and equitable world order. As many observers have pointed
out, the prevailing neo-liberal economic model, which focuses on competition instead of
cooperation and on short-term profit rather than long-term development, risks sacrificing
inclusive development for exclusive economic growth. The deregulation of trade, markets
and financial services has fuelled financial speculation and institutionalized corporate
impunity on an international scale, with devastating human rights consequences in terms of
corruption, labour exploitation, economic inequality, environmental degradation and
corporate abuse. In addition, as economists have warned, current manifestations of extreme,
free-market capitalism only function with continuous, inequitable levels of growth, which
cannot be indefinitely sustained. The resulting boom and bust cycles have caused untold
misery to billions of human beings, and future major financial crises and economic
depressions cannot be excluded.15
16. There have been many proposals for overcoming some of these obstacles, including
through the adoption of binding international standards and the ratification of a binding
instrument for transnational corporations, setting out their social and environmental
obligations. The Independent Expert has supported this proposal — particularly given the
so-far unsatisfactory outcomes of self-regulatory frameworks on business and human rights.
The Independent Expert has further called for the future instrument to be equipped with
appropriate enforcement mechanisms. Beyond this, at the national level, States should
develop and enforce civil and penal sanctions for business activity that has criminal
consequences or results in adverse human rights impacts. It is regrettable that efforts at the
United Nations to call on transnational corporations to show due diligence have largely
failed and that the drafting of a legally binding instrument has not enjoyed the support of
many developed States.
17. Secondly, considering that trillions of dollars will be required to address the
consequences of climate change and the achievement of the Sustainable Development
Goals, the Independent Expert has encouraged States to significantly reduce military
budgets and transform military economies into peacetime economies equipped to finance
climate change mitigation and the improvement and expansion of social services. To this
end, in his 2014 report to the Council (A/HRC/27/51), the Independent Expert proposed
that States develop conversion strategies16 to reorient resources formerly used for military
expenditure towards social services, the creation of employment in peaceful industries and
greater support to the post-2015 development agenda.
18. In the same vein, the Independent Expert has condemned tax evasion and tax
avoidance practices as robbing Governments of funding that might otherwise be directed to
fulfilling positive human rights obligations. In his 2016 report to the General Assembly
(A/71/286), for example, the Independent Expert called on States to ensure individuals and
corporations pay their fair share of taxes, including by recovering back taxes, repatriating
kleptocrat deposits abroad, abolishing tax havens, adopting effective measures to outlaw the
registration of fake companies and banning profit-shifting by corporations. Moreover, the
adoption of tax legislation on financial transactions in Member States would be a
significant step towards ensuring States can finance programmes to achieve the Sustainable
Development Goals and take other measures to advance the right to development.
15 See www.theguardian.com/commentisfree/2016/sep/19/its-time-to-junk-the-flawed-economic-
models-that-make-the-world-a-dangerous-place.
16 See www.ips-dc.org/blog/demilitarizing_the_economy_a_movement_is_underway.
19. Going further, the Independent Expert has advocated for increased transparency at
national and international levels in the tax arena. In his 2016 report to the Council
(A/HRC/33/40), in particular, the Independent Expert recommended that the United
Nations adopt an international standard for multilateral, automatic exchange of tax
information among States. In addition, States had been encouraged to develop public
registries of ultimate beneficial ownership. Furthermore, given the role whistle-blowers
play in equalizing the playing field in the international economic order, the Independent
Expert emphasized the importance of protecting individuals who shared information about
rights-abusing corporate tax practices from prosecution and reprisals. In particular, in the
2016 report, the Independent Expert proposed the adoption of a charter on the rights of
whistle-blowers and the development of a “protected disclosure defence” in case tax
whistle-blowers were subject to criminal prosecution.
20. International institutions may themselves present obstacles to the achievement of a
democratic and equitable international order. In his reports to the Council and the General
Assembly in 2015, 2016 and 2017, the Independent Expert showed that certain rules of
WTO and practices of the World Bank and IMF were rigged in favour of the powerful,
impeded a level playing field and actually contributed to a widening gulf between the rich
and the poor, both nationally and internationally.
21. For example, the World Bank’s near-exclusive focus on growth in terms of gross
domestic product, increased trade and greater consumption has led its member States to
undertake policies that increase inequalities among their populations and between these
countries and other States. At the same time, the Bank’s continued financing of mega-
projects connected to alleged human rights violations has counteracted its stated
commitment to international development in partner countries. Among the most egregious
violations documented by human rights organizations and Bank observers have been land-
grabbing, brutal evictions, involuntary resettlement, forced labour, child labour, sexual
abuse, massive pollution, destruction of the environment, reprisals against human rights
defenders, corruption and money-laundering.
22. In a similar manner, the strict and selective loan conditions imposed by IMF, such as
the requirement that States demonstrate rapid economic growth after borrowing from the
Fund, has discouraged States from making long-term investments in their health,
infrastructure, education and social sectors. Furthermore, the lack of a global consensus on
sovereign debt restructuring means that States that are not in a position to pay back IMF
loans may fall into vicious debt crises. Together, these factors increase unemployment,
worsen working conditions, reduce access to free quality education and weaken
environmental protection. In a systematic sense, they also diminish the capacity of States to
guarantee rights and can lead to underresourced public sectors that are vulnerable to
breakdowns and emergencies.
23. In his 2017 reports to the Council (A/HRC/36/40 and Corr.1) and the General
Assembly (A/72/187), the Independent Expert accordingly recommended that both the
World Bank and IMF amend their founding Articles of Agreement to expressly integrate
human rights in their policies and practices. He suggested that both institutions conduct
human rights impact assessments to analyse the potential negative effects of financed
projects or partnerships and expand the scope of their work to include more wholesale
evaluations of their effect on the distribution of wealth, food security, clean water,
sanitation, health care, housing, education and employment.
24. As regards the World Bank, the Independent Expert has urged it to develop a
standalone human rights policy and strengthen recently adopted safeguards under its new
Environmental and Social Framework. Bank projects affecting the livelihoods and land of
indigenous peoples should not be carried out without the genuine, free, prior and informed
consent of the affected communities. Moreover, the Independent Expert has proposed that
recommendations made by the Bank’s own internal watchdogs — namely, the Office of the
Compliance Advisor Ombudsman and the Inspection Panel — be made enforceable. Finally,
the Independent Expert has called on the World Bank to guarantee that, when its projects
lead to human rights violations or environmental damage, recourse mechanisms are both
accessible and effective for victims, and that they provide meaningful restitution.
25. In contrast to the privatization, austerity and market-based solutions that characterize
traditional loan conditions imposed on borrowing States, in his 2017 report to the General
Assembly, the Independent Expert proposed that IMF place new, human rights-conscious
conditions on borrower countries. These conditions would be aimed at generating revenue
that could be used to pay back loans, while not obliging borrower States to divert funds
from social spending. The new conditions include moratoriums on military spending
(except on salaries and pensions) for the duration of the loan; adoption of national
legislation ensuring transnational corporations pay their taxes, while profit-shifting and tax
havens are outlawed; adoption of legislation imposing fines on persons and corporations
that evade taxes and obliging citizens who have money hidden offshore to repatriate their
wealth within a defined period of time or face penal sanctions; adoption of legislation to
prevent corruption and bribes, accompanied by effective monitoring mechanisms;
enactment of financial transactions tax legislation; and assurances by borrower States that
no part of any loan is used to satisfy claims by vulture funds.
26. Yash Tandon reminds us in his book Trade is War17 that, historically, trade disputes
have led to armed conflict, and that nations and peoples can find themselves exploited as a
consequence of international agreements that violate their human dignity. In reports on
bilateral investment treaties and free trade agreements, the Independent Expert has argued
that the investor-State dispute settlement system has subverted the rule of law by creating a
parallel system of dispute settlement, which is not transparent, accountable or even
independent, and thus cannot be tolerated. Moreover, under the investment court system,
States would remain vulnerable to the same kind of frivolous and vexatious claims that
have characterized the hugely expensive, slow and unpredictable investor-State dispute
settlement litigation. Important issues of constitutionality and the rule of law arise when
non-State actors exercise prerogative powers beyond public control and judicial scrutiny
27. In addition to urging the abolition of the investor-State dispute settlement system,
the recommendations of the Independent Expert related to the international trade and
investment regime include calls for WTO to amend its constitution to integrate human
rights, proposals on guidelines for trade dispute tribunals and calls for States to abolish
trade asymmetries and arbitrariness in policies concerning agricultural subsidies.
28. With regard to a more democratic international order, the Independent Expert has
further signalled the need to reform the United Nations and, in particular, the composition
of the Security Council, in order to make it more responsive to the needs of its 193 States
Members. Observers have pointed out that the theoretical equality of the Westphalian State
system is put into question by the realities of power politics, economic imbalances, the
sequels of colonialism and “unequal treaties”, and adverse trade relationships. Indeed, the
overwhelming economic power of some countries renders illusionary the aspirations of
sovereignty of many poorer countries. In the United Nations, votes are often influenced by
economic carrot-and-stick practices, meaning some smaller economies find themselves
involuntarily bending to economic and political pressure.
29. In his 2013 report to the General Assembly (A/68/284), the Independent Expert
recommended strengthening global governance by expanding the membership of the
Security Council, limiting the veto power of permanent members by requiring at least two
votes to exercise it and obliging vetoing States to report their rationales to the General
Assembly. This would prevent the use of veto power to shield States from criticism or
multilateral sanctions. Critics have also proposed to shut down costly international penal
tribunals, including the International Criminal Court, because of outcomes that are
sometimes one-sided, arbitrary and have not managed to pierce the veil of impunity
shielding powerful perpetrators of international crimes. It is far more important to
systematize and strengthen truth commissions and to create effective mechanisms to
provide reparation to victims.
30. The relative powerlessness of indigenous persons, and non-represented and
disempowered peoples vis-à-vis States in global decision-making was an obstacle that was
17 Trade is War: The West’s War Against the World (New York, OR Books, 2015).
highlighted early on in the history of the mandate. In his 2013 report to the General
Assembly, the Independent Expert recommended the reactivation of the Trusteeship
Council in order to advance the self-determination of many indigenous and non-self-
governing peoples. He also proposed that the Special Committee on Decolonization and
other United Nations organs accept and review communications sent to them by indigenous
and unrepresented peoples, with reference to chapter XI of the Charter. Moreover, the
General Assembly was encouraged to amend its rules and procedures to allow for greater
participation of indigenous and non-represented peoples in international debates.
31. More generally, an epistemological obstacle persists concerning the postulate of a
hierarchy of human rights as one of the remaining ideological debates between developed
and developing countries. It is the considered view of the Independent Expert that civil,
cultural, economic, political, and social rights are not only interdependent, but they also
have equal value and importance (see annex I below).
32. A democratic and equitable international order can only flourish in a peaceful
environment. With conflict prevention being the overarching raison d’être of the United
Nations, the hundreds of wars since 1945 indicate that the Organization must reform in
order to live up to its purposes and principles. For that reason, war and war-mongering
(prohibited by Article 2 (4) of the Charter and article 20 (1) of the International Covenant
on Civil and Political Rights) must be banned. Moreover, the so-called “responsibility to
protect doctrine” should be discarded and replaced by the principle of the responsibility to
act in the public interest (see A/HRC/33/40, paras. 13–17). The responsibility to protect
should not be seen as replacing the jus cogens prohibition of the use of force contained in
Article 2 (4) of the Charter. Furthermore, under no condition should it be tolerated that a
State unilaterally invoke the right to protect without Security Council approval. Instead, the
Independent Expert has proposed that a standing group — administered by the United
Nations and deployed by the Security Council, which receives its troops and support from
current Security Council members — is ready for rapid deployment in the event of
violations of Article 2 (4) or future grave human rights abuses.18
33. The Independent Expert has also illustrated the relationship between aspirations for
fulfilment of the right of self-determination and present-day challenges to peace and
security (A/69/272). As a point of fact, the post-colonial world left a legacy of frontiers that
do not correspond to ethnic, cultural, religious or linguistic criteria. This has been a
continuing source of tension that may require adjustment in keeping with Article 2 (3) of
the Charter. The doctrine of uti possidetis is obsolete and its maintenance in the twenty-first
century without the possibility of peaceful adjustments may perpetuate human rights
violations. Thus, the implementation of the right of self-determination is not exclusively
within the domestic jurisdiction of the State concerned, but is a legitimate concern of the
international community.
18 See the debate in the General Assembly on 23 July 2009, summarized in my 2012 report to the
Assembly (A/67/277). Contrary to some trends and perceptions, the idea of the responsibility to
protect, contained in General Assembly resolution 60/1 (2005 World Summit Outcome), did not
replace the Charter-mandated international law of non-interference in the internal affairs of sovereign
States. The responsibility to protect is not a lex specialis that derogates from Article 2 (3), (4) and (7)
or any other provision of the Charter. The principle of non-intervention remains very much valid and
is confirmed in countless resolutions of the Assembly and the Human Rights Council. Therefore,
responsibility to protect cannot circumvent the Charter or engage in sabre-rattling or propaganda for
war. At the plenary debate on the responsibility to protect, the President of the Assembly identified
four benchmark questions that should determine whether and when the system of collective security
could invoke the responsibility to protect: (a) Do the rules apply in principle, and is it likely that they
will be applied in practice equally to all States, or, in the nature of things, is it more likely that the
principle would be applied only by the strong against the weak? (b) Will the adoption of the
responsibility to protect principle in the practice of collective security be more likely to enhance or
undermine respect for international law? (c) Is the doctrine of responsibility to protect necessary and,
conversely, does it guarantee that States will intervene to prevent another situation like the one that
occurred in Rwanda? (d) Does the international community have the capacity to enforce
accountability upon those who might abuse the right that the responsibility to protect principle would
give States to resort to the use of force against other States?
34. At the same time, the right of self-determination is neither self-executing nor
automatic. Recognizing this, the Independent Expert set out, in his 2014 thematic report to
the General Assembly (A/69/272), a set of criteria proposing circumstances in which the
right of self-determination was at issue and processes by which it could be fulfilled. For
example, the Independent Expert indicated that neither the right of self-determination nor
the principle of territorial integrity was absolute. Both must be applied in the context of the
Charter and human rights treaties. Furthermore, the principle of territorial integrity cannot
be used as a pretext to undermine the State’s responsibility to protect the human rights of
the peoples under its jurisdiction. The full enjoyment of human rights by all persons within
a State and peaceful coexistence among States are the principal goals that need to be
achieved. Guarantees of equality and non-discrimination are necessary for the internal
stability of States, but non-discrimination alone may not be enough to keep peoples
together. The principle of territorial integrity is not sufficient justification to perpetuate
situations of internal conflict that may erupt in civil war and threaten regional and
international peace and security.
35. Importantly, any process aimed at self-determination should be accompanied by the
participation and consent of the peoples concerned. Thus, a reliable method of determining
public opinion and avoiding manufactured consent must be devised to ensure the
authenticity of the expression of public will in the absence of threats of or the use of force.
In addition, while it is possible to reach solutions that guarantee self-determination within
an existing State entity, e.g. autonomy, federalism and self-government, if there is a
compelling demand for separation, it is extremely important to avoid the use of force,
which would endanger local, regional and international stability and further erode the
enjoyment of other human rights. Therefore, good-faith negotiations and a readiness to
compromise are necessary; in some cases, these could be coordinated through the good
offices of the Secretary-General and the High Commissioner for Human Rights or under the
auspices of the Security Council or the General Assembly. The Independent Expert has also
advocated for the United Nations to provide advice and technical assistance to States on
viable models of autonomy, federalism and, eventually, referendums.
36. Unilateralism is one of the most serious obstacles to achieving a just world order.
But even groups of States can undermine the international order when they refuse to apply
international norms uniformly and apply them à la carte in order to satisfy economic or
geopolitical interests. Frequently, States perceive human rights as a nuisance or a hindrance
to their freedom of action. Thus, a democratic and equitable order is threatened when
government lawyers often try to escape clear obligations by engaging in unacceptably
narrow (or broad) interpretations of international legal norms.
37. Lawyers have been called “pens for rent” and “intellectual mercenaries”.
Government lawyers have special responsibilities and should not act like “escape artists”.
They should endeavour to see their role as that of facilitators of enforcement of just laws
both nationally and internationally. They should devote their efforts to translating
international commitments into concrete action and crafting the necessary measures to
comply with treaties and the rules of international judicial bodies. Alas, many government
lawyers mistake their vocation for that of defence lawyers, paid to get their guilty clients
off the hook. It is not their function to look for ways to dodge responsibility by concocting
specious interpretations of the law, making bogus distinctions or inventing loopholes.
Would it not be more sensible if lawyers endeavoured to make human rights law
implementable — and not constantly try to drill holes into the vessel of human dignity?
38. Sterile legalisms, the fetishism of law — otherwise known as the doctrine of
positivism — have emerged as a serious impediment to a world order based on the rule of
law, which must also be the rule of justice (see annex II below). Alas, Governments and
private sector actors, including transnational corporations, sometimes abuse the law to
destroy justice.
39. To strengthen the international rule of law and multilateral law-making, the
Independent Expert has recommended amendments to the Charter and the statute of the
International Court of Justice, which would bolster the Court, giving the Court the
necessary power to initiate the issuance of advisory opinions without being asked by the
Security Council or General Assembly, and creating an enforcement mechanism for its
judgments and advisory opinions. Furthermore, calls for a yet-to-be-established world
parliamentary assembly or a United Nations parliamentary assembly seek to address
international democratic deficits and give expression to global public opinion by including
all citizens in global decision-making through the designation of representatives
specifically elected for this purpose.
40. Finally, a high level of institutional inertia cripples action to overcome the
aforementioned obstacles. Even within the United Nations, which is a human institution,
there are various degrees of commitment to human rights, and because of the inefficiency
of some of its organs and the lack of enforcement of its resolutions, it has lost much
credibility with civil society in many countries. The Independent Expert lends his
encouragement to future mandates holders as they push forward the cause of sanity and
human dignity for all.
IV. Recommendations from some of the previous reports of the Independent Expert
A. Reform of the Organization and its agencies
41. In his 2013 report to the General Assembly, the Independent Expert recommended
expanding the membership of the Security Council, limiting the veto power by requiring at
least two permanent members of the Security Council to vote against a given resolution and
obliging those States to report to the General Assembly on the reasons for the veto. The
veto should be allowed only to promote peace and pursue the purposes and principles of the
United Nations. The use of the veto power to shield States from criticism or sanctions is
illegitimate. This may require an advisory opinion from the International Court of Justice or
an amendment of Article 27 of the Charter. As mentioned above, the International Court of
Justice should be empowered to issue advisory opinions separate from those requested by
the Security Council and the General Assembly. Moreover, it should be equipped with a
mechanism to enforce its judgments and advisory opinions.
42. The Independent Expert proposes the abolition of wasteful and arbitrary
international penal tribunals, because they are only used to prosecute the losers and
institutionalize impunity of the powerful. The International Criminal Court has proven to be
too expensive and arbitrary. The campaign against the “impunity” of criminals has
legitimacy only when it is impartial and when it endeavours to indict all persons suspected
of war crimes — and not only and overwhelmingly the vanquished, whereas many others,
sometimes even worse war criminals, are not even accused. It is far more important to
systematize and strengthen truth commissions and to create effective mechanisms to
provide adequate reparation to victims.
B. International order and indigenous peoples
43. In his 2013 report to the General Assembly, the Independent Expert recommended
the reactivation of the Trusteeship Council so as to facilitate the exercise of self-
determination by many indigenous and non-self-governing peoples. The United Nations
should offer its advisory services and technical assistance so as to conduct United Nations
organized and monitored self-determination referendums. In paragraph 69 (n) of his report,
the Independent Expert recommended specifically that the General Assembly revisit the
reality of self-determination in today’s world and refer to the Special Committee on
Decolonization and/or other United Nations instances communications by indigenous and
unrepresented peoples wherever they reside, with reference to chapter XI of the Charter.
The General Assembly may also consider amending its rules and procedures to allow for
the participation of indigenous and non-represented peoples. Meanwhile, the Assembly
should urge States to implement the Declaration on the Rights of Indigenous Peoples. It
should ensure that indigenous, non-represented peoples, marginalized and disempowered
peoples, and peoples under occupation have a genuine opportunity to participate in
decision-making processes.
C. Disarmament for development
44. In his 2014 report to the Council, the Independent Expert recommended a gradual
reduction of military expenses and a conversion of the military economy into a peacetime
economy: not more consumer goods, since there is a limit to what people need and can
consume, but improvement and expansion of social services — education, health care,
clean water, food security and national parks. In paragraph 71 of the report, he
recommended that States should significantly reduce military spending and develop
conversion strategies to reorient resources towards social services, the creation of
employment in peaceful industries, and greater support to the post-2015 development
agenda. States should individually and multilaterally devote savings released from reduced
military spending to resourcing the economic and social transition required to respond to
the global climate change challenge, as envisaged by the United Nations in establishing the
Green Climate Fund pursuant to the United Nations Framework Convention on Climate
Change. Furthermore, a portion of the financial resources released should be devoted to
research and development of sustainable energy, including solar energy, and should be used
to address the looming problem of water shortage, which has the potential to fuel future
wars. An international effort to develop efficient desalination industries should be
envisaged.
D. Criteria for the exercise of self-determination
45. The General Assembly, in its resolution 2625 (XXV), repeatedly reaffirmed the right
of self-determination and stipulated that the establishment of a sovereign and independent
State, the free association or integration with an independent State or the emergence into
any other political status freely determined by a people constitute modes of implementing
the right of self-determination.
46. In his 2014 report to the General Assembly, the Independent Expert focused on the
criteria for the exercise of the right of self-determination (see A/69/272, paras. 63–77). The
following paragraphs contain certain central ideas taken from that report.
47. The right is not extinguished by the lapse of time because, just as in the case of the
rights to life, freedom and identity, it is too important to be waived. All manifestations of
self-determination are on the table: from a full guarantee of cultural, linguistic and religious
rights, to various models of autonomy, to special status in a federal State, to secession and
full independence, to unification of two State entities, to cross-border and regional
cooperation.
48. The implementation of self-determination is not exclusively within the national
jurisdiction of the State concerned, but is a legitimate concern of the international
community.
49. International law evolves through practice and precedents. The independence of the
former Soviet republics and the secession of the peoples of the former Yugoslavia created
precedents for the implementation of self-determination that must be considered whenever
self-determination disputes arise.
50. The aspiration of peoples to fully exercise the right of self-determination did not end
with decolonization. There are many indigenous peoples, non-self-governing peoples and
populations living under occupation who still strive for self-determination. Their aspirations
must be taken seriously for the sake of conflict prevention. The post-colonial world left a
legacy of frontiers that do not correspond to ethnic, cultural, religious or linguistic criteria.
This is a continuing source of tension that may require adjustment in keeping with Article 2
(3) of the Charter. The doctrine of uti possidetis is obsolete and its maintenance in the
twenty-first century without the possibility of peaceful adjustments may perpetuate human
rights violations.
51. The United Nations could be called upon to assist in the preparation of models of
autonomy, federalism and, eventually, referendums. A reliable method of determining
public opinion and avoiding manufactured consent must be devised so as to ensure the
authenticity of the expression of public will in the absence of threats of or the use of force.
Long-standing historical links to a territory or region, religious links to sacred sites, the
consciousness of the heritage of prior generations, as well as a subjective identification with
a territory, must be given due weight.
52. Agreements with persons who are not properly authorized to represent the
populations concerned and a fortiori agreements with puppet representatives are invalid. In
the absence of a process of good-faith negotiation or plebiscites, there is a danger of armed
revolt. A consistent pattern of gross and reliably attested violations of human rights against
a population negates the legitimacy of the exercise of governmental power. In case of
unrest, dialogue must first be engaged in the hope of redressing grievances. States may not
first provoke the population by committing grave human rights abuses and then invoke the
right of self-defence in justification of the use of force against them. That would violate the
principle of estoppel. No doctrine, not that of territorial integrity nor that of self-
determination, justifies massacres; neither doctrine can derogate from the right to life.
Norms are not mathematics and must be applied with flexibility and a sense for
proportionality in order to reduce and prevent chaos and death.
53. Secession presupposes the capacity of a territory to emerge as a functioning member
of the international community. In this context, the four statehood criteria of the
Montevideo Convention on the Rights and Duties of States are relevant: a permanent
population; a defined territory; government; and the capacity to enter into relations with
other States. The size of the population concerned and the economic viability of the
territory are also relevant. A democratic form of government that respects human rights and
the rule of law strengthens the entitlement. The recognition of a new State entity by other
States is desirable but it has a declaratory, not a constitutive effect.
54. When a multi-ethnic and/or multi-religious State entity is broken up, and the
resulting new State entities are also multi-ethnic or multi-religious and continue to suffer
from the old animosities and violence, the same principle of secession can be applied. If a
piece of the whole can be separated from the whole, then a piece of the piece can also be
separated under the same rules of law and logic. The main goal is to arrive at a world order
in which States observe human rights and the rule of law internally and live in peaceful
relations with other States.
E. World parliamentary assembly in consultative status with the General
Assembly
55. For many decades, the idea of a world parliamentary assembly19 or a United Nations
parliamentary assembly has been under discussion. The idea is to address democracy
deficits by giving expression to global public opinion and including citizens in global
decision-making through elected officials. Such an assembly could be set up by a vote of
the General Assembly under Article 22 of the Charter, or it could be created on the basis of
a new international treaty between Governments, followed by an agreement linking it to the
United Nations. Neither mechanism requires Charter reform. Former Secretary-General
Boutros Boutros-Ghali has been an advocate of such an assembly. In a comment published
at Open Democracy, Mr. Boutros-Ghali made the case for the establishment of a
parliamentary assembly at the United Nations. In order to solve global crises more
effectively, a direct democratic connection between the world’s citizens and the world’s
governance needs to be created. He welcomed the expansion of democracy at the national
level throughout the world, observing that emerging States are increasingly included in
19 See A/68/284; Joseph E. Schwartzberg, Creating a World Parliamentary Assembly: An Evolutionary
Journey, (Berlin, Committee for a Democratic United Nations, 2012); and Richard Falk and Andrew
L. Strauss, “Toward global parliament”, Foreign Affairs, 2001.
global intergovernmental deliberations. He noted, “a third dimension of democratization is
almost completely neglected: developing global democracy beyond States”.20
F. Investor-State dispute settlement arbitrations
56. In his 2015 report to the Council (A/HRC/30/44 and Corr.1), the Independent Expert
recommended that States should impose a moratorium on the execution of investor-State
dispute settlement awards until the entire system was tested by the International Court of
Justice. A new multilateral treaty should be elaborated stipulating that courts could not
execute such awards without verifying their compatibility with human rights treaty
obligations and public order. States should refrain from entering into new bilateral
investment treaties and free trade agreements, including the Trans-Pacific Partnership
Agreement, 21 the Transatlantic Trade and Investment Partnership, the Comprehensive
Economic and Trade Agreement and the Trade in Services Agreement, unless human rights,
health and environmental impact assessments had been conducted, and unless there was full
disclosure, consultation with stakeholders and public participation. Where possible,
referendums should be conducted.
G. International trade and the growing power of transnational
corporations
57. Yash Tandon reminds us in his book Trade is War that, historically, trade disputes
have led to armed conflict. Indeed, trade is a means to impose economic and political
dominance.22
58. In his reports on bilateral investment treaties and free trade agreements, the
Independent Expert recommended that the General Assembly invite the United Nations
Conference on Trade and Development to convene a conference to revise or terminate
international investment agreements that had resulted in human rights violations. The
General Assembly might consider tasking the Council with a specific mandate on periodic
monitoring of the adverse impacts of the international investment regime on the enjoyment
of civil, cultural, economic, political and social rights, for example by expanding the scope
of examination under the universal periodic review (see A/70/285, paras. 66–67).
H. A treaty making the Guiding Principles on Business and Human Rights
binding
59. There are many solid studies concerning massive human rights violations committed
by transnational corporations with total impunity. The Council should, as a matter of
urgency, adopt a legally binding convention on corporate social responsibility, imposing
civil and penal liability on transnational corporations. The Guiding Principles on Business
and Human Rights, developed by the Special Representative of the Secretary-General on
the issue of human rights and transnational corporations and other business enterprises, are
ineffective because they are based on self-regulation and lack any enforcement mechanism.
20 See http://en.unpacampaign.org/225/boutros-ghali-parliamentary-assembly-inevitable-to-
democratize-global-governance; Joseph Schwartzberg writes in Creating a World Parliamentary
Assembly: “Our increasingly interdependent world can no longer function without an effective UN
system. But for a variety of reasons — mainly related to the obsolescent mindsets and dubious
diplomatic practices of a world still guided mainly by Realpolitik — a large proportion of the human
family has lost faith in the UN. … A democratically constituted WPA will go far toward correcting
these deficiencies and would do much to promote more legitimate, transparent, representative,
accountable and responsive governance” (p. 96).
21 Its successor, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, seems to
suffer from the same fundamental problems as the original Partnership.
22 See also the history of the Opium Wars to force the opening of China to European trade in Jack
Beeching, The Chinese Opium Wars (Orlando, Florida, Harcourt Brace Jovanovich, 1975).
60. A democratic and equitable international order, as prescribed in the Charter, cannot
be achieved through deregulation of trade, markets and financial services. While enterprises
deserve protection from corrupt Governments and arbitrary expropriations, Governments
also need protection from bribery and corruption by investors, speculators and transnational
corporations. Individuals and peoples deserve protection and remedies against corporate
abuse, land-grabbing and exploitation. Observers have long decried the anomaly that, while
businesses have secured privileged protection of their investments and have created
privatized arbitral tribunals to enforce their view of the law, there is no tribunal to protect
Governments from business abuse and no protection of individual victims from the
negative consequences of business activities. That normative asymmetry must be corrected.
Fifty years after the adoption of the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights, there is still no
enforcement mechanism. That reduces the credibility of United Nations institutions that
continue adopting Views, declarations and resolutions, which many States and non-State
actors ignore. While there are enforcement mechanisms for trade and other agreements at
WTO and investor-State dispute settlement, it is imperative to create them globally for
human rights treaties. The promise of the United Nations Global Compact and the Guiding
Principles on Business and Human Rights has not been realized, simply because self-
regulation never works.
61. Binding obligations on investors and corporations must be incorporated into trade
and investment agreements, and public courts must have jurisdiction to examine violations
and impose sanctions on violators. Although the Guiding Principles are based on hard law,
they are violated with impunity, as illustrated by bilateral investment treaties and free trade
agreements that encroach into the regulatory space of States. The treaty should provide for
its own monitoring and enforcement body or be incorporated into the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights as optional protocols, stipulating that decisions are legally binding, as
are those of the Inter-American Court of Human Rights and the European Court of Human
Rights. States must enact civil and penal legislation concerning the human rights impacts of
business activity; the doctrine of State responsibility should be invoked to make abuses
justiciable where the enterprises operate or are registered. In June 2014, the Human Rights
Council adopted resolution 26/9 creating an intergovernmental working group with a
mandate to draft such an instrument. The Forum on Business and Human Rights contributes
to that process.
62. Beyond the treaty, there is an urgent need to strengthen national and international
penal law, including anti-trust legislation, to address cases of corruption, fraud, bribery,
money-laundering, conspiracy, collusion, tax evasion, insider-trading, looting of pension
funds, and reckless endangerment of life and the environment. In that context, the United
Nations Convention against Corruption and the United Nations Office at Vienna could
advance the process. Also pertinent is the United Nations Convention against Transnational
Organized Crime, as certain activities of mining enterprises, including gold, diamond and
coltan mining, as well as the ivory trade, entail criminal acts and gross human rights
violations.
I. Tax evasion and tax havens
63. In paragraph 71 of his 2016 report to the General Assembly (A/71/286), the
Independent Expert focused on the negative impact of tax evasion, profit-shifting and tax
competition on the common effort to achieve a more democratic and equitable world order.
He recommended, inter alia, that States should: (a) establish an intergovernmental tax body
under the auspices of the United Nations with the mandate to elaborate a convention on
taxation and international cooperation in tax matters; (b) adopt a common United Nations
standard for multilateral and automatic exchange of tax information; (c) implement
corporate tax and financial transparency, including public registries of ultimate beneficial
ownership; (d) ensure that multinational corporations are treated as single entities
conducting business across international borders; (f) abolish “sweetheart” tax deals;
member States of the European Union should revise the Code of Conduct for business
taxation to specifically prohibit “sweetheart” deals; (g) conduct systematic human rights
impact assessments to monitor the spillover effects of their tax policies and agreements
nationally and overseas (these should be periodic and independently verified); (h) impose
criminal penalties for abusive tax practices and abolish tax amnesties; (i) enact legislation
to protect whistle-blowers and witnesses, and ensure that individuals who want to share
information about corporate tax practices that harm human rights are not prosecuted or
subjected to reprisals; States should cease punishing individuals for disclosing information
that the public has a right to receive pursuant to article 19 of the International Covenant on
Civil and Political Rights. A charter on the rights of whistle-blowers and a “protected
disclosure defence” should be adopted, pursuant to which criminal or civil liability for
protected disclosures is waved and an “authorized channel” is provided for such disclosures;
and (j) introduce a financial transactions tax and enforce it.
J. International financial institutions
64. In his 2017 reports on the World Bank and IMF, the Independent Expert called upon
both Bretton Woods institutions to amend their Articles of Agreement so as to better serve
the purposes and principles of the United Nations, precisely because some of their activities
had entered into conflict with the human rights and development goals of the United
Nations.
65. The Independent Expert recommended that both institutions should amend their
Articles of Agreement so as to integrate human rights and require human rights, health and
environmental impact assessments before approving projects or loans. He also
recommended the abolition of the World Bank’s International Centre for Settlement of
Investment Disputes (A/HRC/30/44).
66. He proposed that the General Assembly take appropriate measures to bring the
World Bank and IMF on board, so that they worked for development and human rights and
assisted the world community in the achievement of the Sustainable Development Goals,
solving global problems, including pandemics, climate change and sovereign debt.
67. In his report, he also called on IMF to abandon its misguided prioritization of
economic growth above all other considerations, including human rights and the
environment. Indeed, there is evidence that, within the institution, broader considerations,
including income and gender inequalities, are already being discussed. In June 2016, the
research department of IMF produced a paper, entitled “Neoliberalism oversold?”, in which
it questioned the efficacy of the current guiding ideology of IMF. The authors begin with
the ominous finding that, “instead of delivering growth, some neoliberal policies have
increased inequality, in turn jeopardizing durable expansion”, and concluding that the
current policies did not deliver as expected.23
68. The strict and selective loan conditions imposed by IMF, such as the requirement
that States demonstrate rapid economic growth, discourages States from making long-term
investments in health, education and public infrastructure. Furthermore, the lack of a global
consensus on sovereign debt restructuring means that States that are not in a position to pay
back loans may fall into vicious debt crises. Together, these factors can increase
unemployment, worsen working conditions, reduce access to free quality education and
weaken environmental protection. In a systematic sense, they also diminish the capacity of
States to guarantee rights and can lead to underresourced public sectors that are vulnerable
to breakdowns and emergencies.
69. At this year’s spring meeting of the World Bank and IMF, the Independent Expert
had the opportunity to discuss a variety of issues with lawyers and economists at both
23 Jonathan D. Ostry, Prakash Loungani and Davide Furceri, “Neoliberalism: oversold?”, Finance and
Development, vol. 53, No. 2 (June 2016). Available at www.imf.org/external/pubs/ft/fandd/
2016/06/pdf/ostry.pdf. See also Rick Rowden, “The IMF confronts its N-word”, Foreign Policy, 6
July 2016. Available at http://foreignpolicy.com/2016/07/06/the-imf-confronts-its-n-word-
neoliberalism.
institutions. He is persuaded that IMF must change its priorities, give up the outdated loan
conditions of privatization, deregulation of markets and “austerity” in social services, which
in the past have resulted in human rights violations, including in Greece, Argentina and
Tunisia, to name but a few.
70. Bearing in mind that power dynamics are changing, it is time for the World Bank
and IMF to discover a new vocation to promote development and human rights through
“smart” lending practices that benefit not only banks and speculators, but billions of human
beings.
71. Henceforth, IMF should make loans subject to a new set of conditions, including:
(a) A moratorium on military expenditure for the duration of the loan;
(b) Adoption of national legislation that ensures that national and transnational
corporations pay their taxes, while profit-shifting and tax havens are outlawed;
(c) Adoption of legislation imposing fines on persons and corporations that
evade taxes and obliging citizens who have money hidden offshore to repatriate their
wealth within a defined period of time, or face penal sanctions;
(d) Adoption of legislation to prevent corruption and bribes, accompanied by
effective monitoring mechanisms;
(e) Enactment of financial transactions tax legislation;
(f) Assurances by borrower States that no part of any loan would be used to
satisfy claims by vulture funds.
72. These proposals would enable States to generate revenue to pay back IMF loans and
satisfy the legitimate concerns of creditors. At the same time, they would ensure that States
can continue to meet their human rights obligations and fulfil the Sustainable Development
Goals.
73. The human rights dimension in lending can no longer be ignored. No international
financial institution, no transnational corporation and no trade agreement is above
international law. All must respect the overarching international human rights treaty regime.
74. Implementing these recommendations will benefit the entire human family. Only
through the concerted efforts of IMF and the World Bank — together with the United
Nations — will a more democratic and equitable international order emerge.
K. Gender equality
75. It is high time that a woman be elected Secretary-General and that a woman be
elected President of the General Assembly.
V. Conclusions and recommendations
76. The Independent Expert wishes to reaffirm his commitment to strengthening
the special procedures of the Human Rights Council, which have proven their worth
over the past decades. As a mandate holder, the Independent Expert is required to be
independent, which means always ready to listen to all stakeholders, keeping an open
mind, conducting research objectively and without ideological prejudices, consistent
with the principle audiatur et altera pars, and impervious to the pressures of political
correctness and to self-censor. The essence of an independent expert is not merely his
or her expertise — which must be considered a given — but the faculty to think inside
and outside the box, while rigorously respecting the terms of reference laid down in
the resolution establishing the mandate, and observing the code of conduct. While
inevitably belonging to a certain cultural and educational background, the rapporteur
must be able to jump over his or her own shadow and get at the facts.
77. Naming and shaming is doomed to failure when the party doing the naming
lacks moral authority and has skeletons in the closet. A more promising strategy is to
persuade the targeted State that it is in its own interest to reform, for which advisory
services and technical assistance can be provided by the Office of the United Nations
High Commissioner for Human Rights. Quiet diplomacy and mediation through the
good offices of the Secretary-General can be more effective in advancing human rights
and international solidarity than pointing fingers, which is not always useful as
evidenced by the Human Rights Council, where serious human rights issues in some
States are ignored while others receive disproportionate attention, thus weakening the
institution’s credibility.
78. It is more important to understand the root causes of violations, such as
endemic inequalities, the persistence of privilege and the culture of violence. The
provision of recourse and redress for the victims is also important. With this in mind,
the Independent Expert has endeavoured to formulate recommendations that entail
more than temporary measures and require paradigm changes. A mandate holder
must have the courage to break the silence about taboo topics. He or she should give
impulses and speak clear language, tear down pretences and double-standards. The
rapporteur must not be the guardian of the status quo, a fig leaf for the international
community, so that everybody pretends to have a good conscience and continues with
“business as usual”.
79. Hence, let us rediscover the spirituality of the Universal Declaration of Human
Rights and revive the legacy of Eleanor Roosevelt, Charles Malik and Rene Cassin.
We owe it to ourselves and future generations. The Universal Declaration of Human
Rights was clear in bestowing upon us the collective responsibility of building a better
world, which we must honour.
80. Mandate holders may draw inspiration from Horace’s Epistles 24 — and the
author’s invocation, sapere aude — and use their judgment with the courage of
conviction, unafraid of expressing politically incorrect views. This philosophy of
conscience and moral imperative was also championed by Immanuel Kant during the
Enlightenment.
81. In our post-modern world of nuclear weapons, artificial intelligence and killer
robots, we need judgment more than ever. Back in 1933, the League of Nations invited
Albert Einstein to address the vital question “Why war”.25 Answers are contained in a
brilliant exchange of letters with Sigmund Freud, answers that are valid for the
United Nations today. Indeed, as our colleagues at the International Labour
Organization have memorably enjoined us: if we want peace, we must cultivate justice
— si vis pacem, cole justitiam. To achieve peace and justice, we must revive
multilateralism and international solidarity.
24 “Dimidium facti, qui coepit, habet: sapere aude, incipe” (Let’s get started and then have the courage
to use our judgment) (I, 2, 40).
25 Albert Einstein and Sigmund Freud, “Why war?”, An International Series of Open Letters,
International Institute of Intellectual Cooperation, League of Nations, Paris, 1933.
Annex I
A new functional paradigm on human rights
1. All rights derive from human dignity. Codification of human rights is never
definitive and never exhaustive, but constitutes an evolutionary mode d’emploi for the
exercise of civil, cultural, economic, political and social rights. Alas, the interpretation and
application of human rights is hindered by wrong priorities, sterile positivism and a
regrettable tendency to focus only on individual rights while forgetting collective rights.
Alas, many rights advocates show little or no interest for the social responsibilities that
accompany the exercise of rights, and fail to see the necessary symbiosis of rights and
obligations, notwithstanding the letter and spirit of article 29 of the Universal Declaration
of Human Rights.
2. The time has come to change the human rights paradigm away from narrow
positivism towards a broader understanding of human rights norms in the context of an
emerging customary international law of human rights. Law is neither physics nor
mathematics, but a dynamic human institution that day by day addresses the needs and
aspirations of society, adjusting here, filling lacunae there. Every human rights lawyer
knows that the spirit of the law (Montesquieu) transcends the limitations of the letter of the
law, and hence codified norms should always be interpreted in the light of those general
principles of law that inform all legal systems, such as good faith, proportionality and ex
injuria non oritur jus.
3. I propose discarding the obsolete and artificial division of human rights into those of
the falsely called first generation (civil and political), second (economic, social and cultural)
and third generation (environment, peace, development) rights — with its obvious
predisposition to favour civil and political rights. This generational divide is part of a
structure that perpetuates a world order that much too often appears to allow injustice.
4. Instead I propose a functional paradigm that would consider rights in the light of
their function within a coherent system — not of competing rights and aspirations, but of
interrelated, mutually reinforcing rights which should be applied in their interdependence
and understood in the context of a coordinated strategy to serve the ultimate goal of
achieving human dignity in all of its manifestations. Four categories would replace the
skewed narrative of three generations of rights.
5. First we would recognize enabling rights, among which I would list the rights to
food, water, shelter, development, homeland — but also the right to peace, since one cannot
enjoy human rights unless there is an environment conducive to the exercise of those rights.
Article 28 of the Universal Declaration of Human Rights postulates the right of every
human being “to a social and international order in which the rights and freedoms set forth
in this Declaration can be fully realized”. This entails the basic necessities of life and the
right to a level playing field.
6. Secondly I would propose a category of inherent or immanent rights, such as the
right to equality, the right to non-arbitrariness; indeed, every right necessarily contains in
itself the element of equality, the self-evident requirement that it be applied equally and
equitably, that there be uniformity and predictability (what the Germans call
Rechtssicherheit). Immanent rights also encompass the rights to life, integrity, liberty and
security of person, in the light of which other rights must be interpreted and applied. There
are also inherent limitations to the exercise of rights. The general principle of law
prohibiting abuse of rights (sic utere tuo ut alienum non laedas — use your right without
harming others, a principle advocated by Sir Hersh Lauterpacht as an overarching norm
prohibiting the egoistic exercise of rights to achieve anti-social results or unjust enrichment)
means that every right, also a human right, must be exercised in the context of other rights
and not instrumentalized to destroy other rights or harm others. There is no right to
intransigence as we know from Shylock in the Merchant of Venice. The letter of the law
must never be used against the spirit of the law.
7. Third I would propose a category of procedural or instrumental rights, such as the
rights to due process, access to information, freedom of expression and peaceful assembly,
work, education, social security, leisure — rights that we need to achieve our potential, to
complete our personalities, to engage in the pursuit of happiness.
8. Finally I would postulate the category of end rights or outcome rights, that is, the
concrete exercise of human dignity, that condition of life that allows each human being to
be himself or herself. This ultimate right is the right to our identity, to our privacy, the right
to be ourselves, to think by ourselves and express our humanity without indoctrination,
without intimidation, without pressures of political correctness, without having to sell
ourselves, without having to engage in self-censorship. The absence of this outcome right to
identity and self-respect is reflected in much of the strife we see in the world today. It is
through the consciousness and exercise of the right to our identity and the respect of the
identity of others that we will enjoy the individual and collective right to peace (see my
2013 report to the GA A/68/284, paras. 67–68).
9. The United Nations Human Rights Council should become the international arena
where governments compete to show how best to implement human rights, how to
strengthen the rule of law, how to achieve social justice, where they display best practices
and give life to this new functional paradigm of human rights. This kind of competition in
human rights performance is the noblest goal and challenge for civilization. The Council
should become the pre-eminent forum where governments elucidate what they themselves
have done and are doing to deliver on human rights, in good-faith implementation of
pledges, in adherence to a daily culture of human rights characterized by generous
interpretation of human rights treaties and a commitment to the inclusion of all stakeholders.
What the Council must not be is a politicized arena where gladiators use human rights as
weapons to defeat their political adversaries and where human rights are undermined
through “side shows”, the “flavor of the month” or “legal black holes”. The civilization
model of the globalized world must not be one of positivism, legalisms and loopholes, but
one of ethics, direct democracy, respect for the environment, international solidarity and
human dignity.
Annex II
Rule of law must evolve into rule of justice
1. The rule of law is a pillar of stability, predictability and democratic ethos. Its object
and purpose is to serve the human person and progressively achieve human dignity in larger
freedom.
2. Because law reflects power imbalances, we must ensure that the ideal of the rule of
law is not instrumentalized simply to enforce the status quo, maintain privilege, and the
exploitation of one group over another. The rule of law must be a rule that allows flexibility
and welcomes continuous democratic dialogue to devise and implement those reforms
required by an evolving society. It must be a rule of conscience and of listening.
3. Throughout history law has been all too frequently manipulated by political power,
becoming a kind of dictatorship through law, where people are robbed of their individual
and collective rights, and the law itself becomes the main instrument of their
disenfranchisement. Experience has taught us that law is not coterminous with justice and
that laws can be adopted and enforced to perpetuate abuse and cement injustice.
Accordingly, any appeal to the rule of law should be contextualized within a human-rights-
based framework.
4. Already in Sophocles’ Antigone we saw the clash between the arbitrary law of King
Creon and the unwritten law of humanity. Enforcing Creon’s unjust law brought misery to
all. In Roman times the maxim dura lex sed lex (the law is hard, but it is the law) was
mellowed by Cicero’s wise reminder that summum jus summa injuria (highest law is
highest injustice, de Officiis 1, 10, 33), i.e. blind application of the law may cause great
injustice.
5. The argument that “the law must be obeyed” has been challenged by human rights
heroes for thousands of years. Spartacus fought against the Roman slave laws and paid with
his life. Slavery remained constitutional and legal until the mid-nineteenth century;
colonialism was constitutional and legal until the decolonization processes of the 1950s,
1960s and 1970s; the Nuremberg laws of 1935 were constitutional and legal; Apartheid was
constitutional and legal; segregation in the US was constitutional and legal (see, for
instance, the US Supreme Court judgment Plessy v. Ferguson). Civil disobedience by
Henry David Thoreau, Zaghioul Pasha, Michael Collins, Dietrich Bonhoeffer, Mahatma
Gandhi, Martin Luther King, Nelson Mandela, Ken Saro Wiwa, Mohamed Bouozizi were
legitimate and necessary to give example and initiate reforms — but they all suffered the
consequences of opposing blind positivism, the fetishism of the rule of law.
6. Democracy in the twenty-first century requires that the rule of law cease being the
rule of power, might makes right, geopolitics and economics. The rule of law must
incorporate human dignity into the equation and enable people power, self-determination
and referendums. The rule of law must evolve into the rule of social justice and peace.