Future of Human Rights Forum

Geneva, 6 May 2013

Interview transcript: Alfred de Zayas

Good morning or good afternoon. My name is Alfred de Zayas and I am the United Nations (UN) Independent Expert for the Promotion of a Democratic and Equitable International Order. This is reminiscent of a new economic order that has been the subject of various resolutions of the United Nations (UN) General Assembly in the past. As the first United Nations (UN) Independent Expert on International Order, obviously I have the chance to shape it, to give it life and to decide on the priorities for the mandate.

I presented my first report to the Human Rights Council September 2012, my first report to the United Nations (UN) General Assembly November 2012. It was very well received by states and, obviously, it is a somewhat controversial issue to what extent economic, social and cultural rights have the same status as civil and political rights, to what extent the universality of human rights means that the diversity that we all cherish is put into question. As the case may be, the mandate is for an initial period of 3 years, renewable for another 3 years.

As far as my background, I grew up in Chicago and my passion was always history. I did both history and international law at Harvard University. I was always fascinated by the idea of Manecaenism, dividing the world into the good guys and bad guys, dividing the world into black and white. And I noticed, especially studying history, that there were many victims of gross violations of human rights that are essentially ignored. You have victims of the first-degree and victims that you ignore, you have consensus victims and then you have politically incorrect victims about whom you don’t talk.

That was a subject that drew me into international law, drew me into human rights already at Harvard University. But, as a young man I wanted to make money and went to Wall Street. I spent my first years as a young lawyer with a major Wall Street law firm, doing financing of public utilities. After three years, essentially, I was bored to death. It was not what I wanted to do with my life. So I decided to finish my doctorate in history. I applied for a Fulbright and went to Germany, did my doctorate in history and was associated with the Institute of Public International Law at the University of Göttingen. And then I went to the Max Planck Institute in Heidelberg (Germany) before getting the offer to come to Geneva, to the then Division of Human Rights which subsequently became the Center for Human Rights and the United Nations (UN) Office of the High Commissioner for Human Rights, and I was essentially, the principal drafter in the team of the Human Rights Committee.

At that time, the jurisprudence that was being produced by the Division of Human Rights was basically linked with petitions. We had a petitions procedure with the Human Rights Committee, with the Committee against Torture, with the Committee on the Elimination of Racial Discrimination. After a very satisfying career --I must say it is a great privilege to work for the United Nations (UN) and there is nothing more noble, if you are going to work for the United Nations (UN) to work for human rights. And if you are in the position that I was, to actually draft international law that goes from my hands to the experts and from the experts it is issued as a judgment and it is my language that went in there. I had a good sense of satisfaction, and I considered that the actual impact of my work was part of my remuneration. I always thought I would have made a lot more money if I had stayed as a practicing lawyer. On the other hand, the satisfaction of doing things for human rights and actually making a difference, that made it all worthwhile.

After more than two decades in the Office of High Commissioner I decided it was time to move on- So I took early retirement at age 56. I went to teach at the University of British Columbia in Vancouver (Canada), and then I came to teach here at the Institut de Hautes Etudes Internationals et du Développement, the Graduate Institute of International and Development Studies (Geneva, Switzerland), and subsequently got at job teaching international law at the Geneva School of Diplomacy (Geneva, Switzerland) where I am still the principal international law professor. Now I enjoy this very much I mean the contact with the young students also keeps you young.

But, back in 2008, my name was put by non-governmental organizations (NGOs) on the list of possible candidates for positions as United Nations (UN) Special Rapporteurs, United Nations (UN) Independent Expert and I ended up on 8 different shortlists and last year I was then selected and appointed the United Nations (UN) Independent Expert for the Promotion of a Democratic and Equitable International Order. Now that is a very generous synthesis of civil, political, economic, social and cultural rights. I will prove it has added value, although the skeptics don’t like the mandate because they think it is too broad, all over the place.  On the other hand I say it has the potential of bringing everything together, of making sense of the interrelatedness and the interdependence of all these rights.

In my first report, I tried to focus on the concept of democracy, and for me democracy is not just the ballot box. Democracy is not the pro forma voting for candidate A or candidate B. What democracy actually means is power to the people. What is means is that there must be correlation between the needs, the will of the population and the policies that affects them. And that is not always the case. It is very easy to point fingers at developing countries and say they are dictatorships or they are undemocratic. On the other hand, it is a good exercise to look at ourselves and see to what extend a majority of the people, of the United States (US, USA) or of the United Kingdom (UK), or of Spain, France, Japan, Germany and Italy would approve ways moneys are being spent. If you had a referendum, would the populations of these countries approve that 50% or 60% of the national budget would go for matters associated with defense. Would they vote for war? Would they have voted for NATO’s intervention in the Yugoslav War, would they have voted for the coalition of the willing in 2003? These are crucial questions of what democracy is all about. Do we just simply elect leaders and then the leaders do whatever they want without consulting the population?

There must be a way of constantly consulting the population and taking the temperature of world public opinion. I look at that issue in my first report and I am still very much looking at that issue because I would like to find a solution. The model of direct democracy that we know here in Switzerland seems to be a good one. It may not be suitable to be exported to every country. On the other hand, some elements of direct democracy are missing in the political arena in the United States (US) or in the United Kingdom (UK) or in Germany. I think it will be very helpful to know what people really need and what people really want. That of course entails access to information, because obviously everybody speaks in favour of freedom of expression, freedom of opinion, freedom of the media, freedom of the press. Obviously -- that is a given. But to what extend is the private sector, the private media doing its job of informing, of educating or is the private media just as guilty of manipulating public opinion as the government in order to make an informed decision on a particular issue impossible. So these are matters that I think belong to the mandate and need to be dealt with.

The other aspect of the mandate the aspect concerning equity. There I have been looking at the work of the World Trade Organization (WTO), at the work of the financial institutions  - the Bretton Woods institutions, of the International Monetary Fund (IMF) and the World Bank.  To what extend these bodies are furthering international equity or are they undermining international equity or are they adding to the problem, or are they themselves the problem? So these are matters that I will explore in the course of my mandate. As I said, I find a tremendous challenge. I am learning a great deal in the process because my experience was primarily in the area of civil and political (human) rights. I come from the United Nations (UN) Human Rights Committee, dealing with torture, dealing with arbitrary detention, dealing with the death penalty, dealing with fair trial proceedings and so on and so forth. But, the right to food, the right to education, the right to healthcare these are all crucial rights, which I would call enabling rights. If you have food, if you have education and if you have work, only then can you fully achieve your potential, only then can you enjoy civil and political rights. So to a certain extend a change of paradigm is necessary.

I have always spoken against the idea of dividing rights into rights of the first generation -civil and political rights - rights of the second generation- economic, social and cultural rights - and then rights of the third generation - environmental rights, right to peace and right to the homeland – which people say that don’t even exist. And I have said: wait a minute! That is a positivistic approach. It is not the codification of a right that makes it a right. It is a human right long before it was codified. Certainly the Déclaration des Droits de l’Homme et du Citoyen of 1789, certainly the Universal Declaration of Human Rights of 1948 did not invent human rights. They just simply put down on paper a limited number of those rights.

What is crucial, if you are a philosopher, is the concept of human dignity. What attaches to human dignity, what are the components of human dignity? And don’t all human rights actually derive from this higher principle of human dignity? That is what we have to examine and, say at the Nuremberg’s Trial, it has been claimed that at the Nuremberg’s Trial (Second World War) there were expos facto criminal norms established like the crime against peace etc. But, what the judges and what the prosecutors in Nuremberg (Germany) were trying to say, there is a higher law, a natural law. And from this concept of a higher law flow the whole structure of international law and human rights protection. Also, these concepts flow into my mandate. My mandate is not a positivistic mandate. I am not a bean counter; I am not interested in just travelling the world and compiling information and then coming forth with a nice compilation of facts and statistics. That does not help anybody. I am trying to help people to think, to think differently, to simply take the challenge of thinking outside the box. Take the challenge of looking at the system of human rights protection and see whether it is working properly? How are we going to make it work better? How are we going to help concretely a human being? We have norms, we have mechanisms, but we have this famous implementation gap. How can we implement these rights, how can we make them accessible to every human being in every region of the world?  That belongs to my mandate.

And what are the obstacles? Too many, I will not be able to explain in a few minutes what I consider to be the major obstacles to the realization of a democratic and equitable international order. But, what I see as undermining the whole system is a tendency to selectivity. Governments highjack a human right in their direction; what is interesting economically or politically for them. So they want to concentrate on those human rights that they can use or instrumentalise for something else. So human rights become a tool to achieve something else. Human rights are used as a weapon against the state you want to demolish basically. So there is the tendency of applying international law à la carte. I apply international law today this way and tomorrow that way. There is no logic in it, the only logic is your overarching economic interests, and when your overarching interests require you to rely on a norm of international law you do. So when they require you to ignore that same norm, you will also ignore it.

Now if states would accept that it is in their own interest to play the game and not to be opportunists, not to be intellectually dishonest, I think we would make a considerable progress if the mindset of the politicians could be, through a process of evolution, made to conform with a uniformity of parameters in human rights interpretation and in human rights application. There is another problem, or another obstacle that I see and that is what I call the lobbies, the lobby democracies, the problem of special interest groups, the military industrial complex and the oil and gas industries. None of these people are democratically elected, but they exercise enormous power and they are not accountable to anybody. That is a very serious problem, especially today, much more today than a century ago. Multinationals are richer, more powerful than states. And they make decisions that affect you, that affect me and I have no way of influencing these decisions. As I said, they are not democratically elected.

We need a more proactive United Nations (UN) General Assembly functioning, which we haven’t seen before. Take the World Parliamentary Assembly idea, which former United Nations (UN) Secretary-General Boutros Boutros-Ghali supports very vocally and very emphatically.  It is, I think, a possible solution. A World Parliamentary Assembly whereby all the representatives would be directly elected into it. It would be likely to be more representative of the people than the United Nations (UN) General Assembly. The United Nations (UN) General Assembly doesn’t have representatives who are elected in their personal capacity, what you have in the United Nations (UN) General Assembly is Ambassadors, you have states that are members of the United Nations (UN) General Assembly, not people. Now, how many of these 193 plus states (United Nations, UN, member-states) in the United Nations (UN) General Assembly are really representative of their people. Obviously, back in the 1970s, 1980s everybody remembers that the United Nations (UN) General Assembly did the obvious and did not recognize the credentials of the white minority government of South Africa. Obviously, that government, the apartheid-government was not representative of the people of South Africa. But, if you are going to apply this precedent, with regard to other countries, I think you would find that a considerable number of the United Nations (UN) member-states are not represented or representative of their respective populations, but only representative of a ruling elite, of a small group of oligarchs that run everything, and ignore the wishes of their people. So if you had a World Parliamentary Assembly and you could actually elect individuals, not Ambassadors but individuals like architects, medical doctors, lawyers and engineers that might give it more legitimacy in a democratic sense. Even if it has no legislative power, even if it does not have the authority to issue, decrees or to make binding decisions, if it makes its views public, it would be very difficult for the United Nations (UN) General Assembly, or even for the United Nations (UN) Security Council, to ignore this new body called a World Parliamentary Assembly.

Now the bottom line in human rights is the human being. The bottom line is helping the human being to achieve his or her potential, and in order to do that, we already have a certain number of mechanisms, and those mechanisms should be strengthened. On 5 May 2013 the Optional Protocol to the United Nations Covenant on Economic, Social and Cultural Rights entered into force. At present, there are only 10 states parties to the Optional Protocol, but when the Optional Protocol to the United Nations Covenant of Civil and Political Rights entered into force way back in 1976, there were only 12. And by now it is about 114. It is not universal, but there is a hell of a lot of states that do recognize the competence of the United Nations (UN) Human Rights Committee to receive and examine petitions on matters of civil and political rights. This new procedure for economic and social rights has enormous implications because suddenly the right to food, the right to work, the right to equal pay, the right to healthcare, the right to education have become justiciable. An individual can claim these individual rights before the Committee on Economic, Social and Cultural Rights, and that Committee is going to do like the United Nations (UN) Human Rights Committee, is going to generate jurisprudence. That is, once again, a form of education. Case law has that advantage that it concretizes a norm. Black letter law does not touch you, but when you have a human face, you have a name of a victim and you have a very concrete problem and there is a judgment of an expert body that says Article 7, Article 8 of the Covenant have been violated and the remedy to those violations is compensation, or release from imprisonment or whatever, that creates not only does it concretize the right we are talking about, but also provides an illustration for public officials in the future. Public officials will know what you are talking about. When you are referring to this black letter law, that means that in any case like this you are going to have to deal with it in this fashion. Otherwise, you will be in violation. I am very much an advocate of petitions procedures even if, in some cases, they are not implemented by governments. Ultimately, we would like to see a World Court of Human Rights with powers of enforcement. That is many years down the line, but if we don’t think boldly now, we will not have it tomorrow. If we don’t have dreams, we will not be able to achieve those goals to make those dreams come true in the future.

As the case may be, I have been given a wonderful mandate, and I am consulting everybody, I mean I have told governments I am not against you, not at all. We need you, because you are the ones that are going to be implementing my recommendations. I want to listen, and I want to listen and listen some more and then, if I make a recommendation, I would like to see to what extend I can help you in realizing the actual transformation of a recommendation into action. That will vary from country to country. In this context of an international order, what I would like to tell governments is: I am not going to be naming and shaming, that is not my idea. For some of the mandates, that is important. For my mandate less so. What I would like to see is each individual government to take an honest look at their practice of human rights, not only at the laws, but also at the actual practice of human rights. And let everybody take one step forward. Everybody make some modest improvements, and if everybody does that, we have gained a great deal.  

I have no illusions that we are going to do away with human rights violations in the world. The Bible has been around for thousands of years and the Bible has not done away with sin. I don’t think that the Universal Declaration of Human Rights or the 10 core human rights treaties are going to do away with injustice. But they do provide a framework, they provide a mechanism, and gradually step-by-step, we are going in the right direction. Those who are pessimists, and I am not a pessimist, I would like to tell them just look at the world in the Middle Ages, look at the world at the time of the Renaissance, look at the world at the time of the 30-Years War, at the time of French Revolution, at the time of the Bolshevik Revolution, I think the world has made an enormous progress in human rights, and today, every politician at the very least has to pay lip-service to human rights. There is an emerging culture of human rights, and if civil society is really strong and really loud, their elected officials will have to listen to them. My hope again is to give civil society greater voice and to advance to world referenda, to advance to a World Parliamentary Assembly, or a reinvigorated and re-strengthened Inter-Parliamentary Union.  

And on this note, I would like to thank you.