tag:theconversation.com,2011:/fr/topics/un-human-rights-commissioner-16793/articlesUN Human Rights Commissioner – The Conversation2021-09-28T14:37:23Ztag:theconversation.com,2011:article/1681152021-09-28T14:37:23Z2021-09-28T14:37:23ZVictims of Habré’s rule haven’t been paid a cent of the compensation due to them<figure><img src="https://images.theconversation.com/files/422142/original/file-20210920-26-pd3r5r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Relatives of the victims at Hissene Habre's 2015 trial in Dakar, Senegal </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/relatives-of-the-victims-attend-trial-of-former-chadian-news-photo/481415854?adppopup=true">Cemil Oksuz/Anadolu Agency/Getty Images</a></span></figcaption></figure><p>What happens when survivors of atrocities are granted a large sum of reparations but the court which ordered the reparations has disappeared and the person responsible for paying the reparations has died? </p>
<p>This is the question victims of the regime of former Chadian dictator Hissène Habré are facing.</p>
<p>Habré, who <a href="https://www.hrw.org/report/2016/06/28/enabling-dictator/united-states-and-chads-hissene-habre-1982-1990">ruled</a> Chad from 1982 to 1990, <a href="https://www.reuters.com/world/africa/chads-former-president-habre-convicted-war-crimes-dies-senegal-2021-08-24/">died</a> in late August this year from COVID-19 complications while serving a life sentence in Senegal for war crimes and crimes against humanity. His <a href="https://issafrica.org/iss-today/habre-guilty-as-charged">prison sentence</a> was delivered in 2016, by the Extraordinary African Chambers, a specialised criminal court set up in Dakar through an agreement between the Senegalese government and the African Union (AU). The Extraordinary African Chambers ceased its operations after completing appeals one year later. </p>
<p>The trial was the result of more than <a href="https://www.brot-fuer-die-welt.de/fileadmin/mediapool/2_Downloads/Fachinformationen/Analyse/Analysis70-The_Habre_Case.pdf">25 years of persistent efforts</a> by Chadian victim groups and their non governmental partners to bring Habré to justice. In addition, the Extraordinary African Chambers <a href="https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/caseLaw.xsp?documentId=E72F1D64576D82F5C125828800395230&action=openDocument&xp_countrySelected=SN&xp_topicSelected=GVAL-992BU6&from=state">ordered</a> Habré to pay over CFA 82 billion (more than US$ 140 million) to 7,396 victims who had participated in the trial as civil parties. This remains the <a href="https://www.tandfonline.com/doi/abs/10.1080/13642987.2017.1360018">largest amount of compensation</a> awarded by an international(-ised) criminal court.</p>
<p>Yet, more than four years after the order, none of the victims had received any compensation.</p>
<p>The Extraordinary African Chambers appeals judges had ordered the reparations to be implemented through a <a href="https://brill.com/view/journals/lape/18/1/article-p33_2.xml?language=en">“victims’ compensation fund”</a> similar to a model that exists at the International Criminal Court and its <a href="https://www.trustfundforvictims.org/">Trust Fund for Victims</a>. But now Habré is dead, and the fund still only exists on paper.</p>
<p>Victims in Chad are frustrated with the slow progress and have frequently <a href="https://www.africanews.com/2019/08/08/victims-of-hissein-habre-s-dictatorship-in-chad-demand-justice//">organised</a> marches and demonstrations. The UN High Commissioner for Human Rights <a href="https://new.in-24.com/News/amp/182314">stressed</a> that Habré’s death in no way constitutes an obstacle to the implementation of the fund and the Extraordinary African Chambers’s compensation order.</p>
<p>Attention has shifted to the AU and the Chadian government to come to an agreement to bring the fund into existence and start compensating victims. Action is needed, if the court’s order is not to turn into a fictitious award.</p>
<h2>How it was meant to work</h2>
<p>The Extraordinary African Chambers appeals judges provided the fund with great discretion in executing the reparations order. It included the possibility to engage with other victims beyond the civil parties and collaborate with Chad and victim associations on conceiving collective reparations not ordered by the court. </p>
<p>In addition, the fund was made the repository for the proceeds of property seized from Habré. It was also instructed to monitor Habré’s financial situation with a view to identifying and seizing additional assets.</p>
<p>The Extraordinary African Chamber’s appeals judgement had made the fund central to the implementation of reparations. </p>
<p>This was a risky strategy. It put all hope into a new institution yet to become operational. </p>
<p>The fund was eventually established under the auspices of the AU, following a resolution in July 2016 and the adoption of the <a href="https://www.hrw.org/sites/default/files/supporting_resources/statute_trust_fund_victims_english.pdf">fund’s statute</a> in early 2018. </p>
<p>However, it took until June 2019 before reaching an agreement with Chad for the establishment of the fund’s headquarter in N’Djamena. Then the COVID-19 pandemic hit, and things were brought to a standstill. </p>
<h2>The challenges ahead</h2>
<p>The next challenges are to get the fund operational and mobilise resources. Following an AU mission to Chad, in mid-September 2021, there are hopes that a Board of Directors with members from the AU, the Chadian government and the three victims associations will soon resume its function. The statute also foresees a secretariat to assist the Board with its mandate.</p>
<p>More difficult will be to actually <a href="https://academic.oup.com/jicj/article-abstract/16/1/141/4930645?redirectedFrom=fulltext">mobilise the funds</a> for compensation. The Extraordinary African Chambers had seized assets belonging to Habré. These consists of one property with villa in Dakar (with a reported estimated value of almost US$800,000) and two bank accounts. </p>
<p>Yet, action is needed to convert the protective seizure into monetary benefit for the victims. Victim lawyers have so far not <a href="https://www.justiceinfo.net/en/81192-habre-death-final-blow-or-wake-up-call-reparations.html">brought any action</a> before the High Court in Dakar, which was designated by the Extraordinary African Chambers to hear any matters after its closure. Presumably because they were waiting for the fund’s establishment, which is to receive the proceeds. </p>
<p>Accessing Habré’s alleged assets beyond Senegal’s borders will be more tricky still, more so after his death. A Chadian commission of inquiry <a href="https://justicehub.org/article/victims-lawyers-start-battle-to-seize-habres-millions/">claimed</a> in 1992 that Habré stole CFA 3.32 billion (US$ 5.7 million) from the national treasury.</p>
<p>One thing is clear: Habré’s assets alone will come nowhere near to satisfying the Extraordinary African Chambers’ significant reparations order. The AU has allocated US$ 5 million to the fund, presumably also for its initial operating costs. Moreover, it was <a href="https://www.justiceinfo.net/en/41572-can-the-victims-of-the-habre-regime-still-get-reparations.html">reported</a> that the Extraordinary African Chambers had transferred almost EUR 500,000 (US$ 585,000) to the fund, which remained in their accounts at the time of its dissolution. The AU has also <a href="https://au.int/sites/default/files/speeches/38037-sp-speech_ex_council_6_feb_20docx.pdf">announced</a> plans to convene a resource mobilisation conference, involving member and partner states, international organisations and other entities, to solicit voluntary contributions to the fund.</p>
<h2>Key roles for Chad</h2>
<p>A key role will fall to the Chadian government. While Chad had supported the Extraordinary African Chambers, it has so far done little to fulfil its own obligations to compensate the victims of the Habré regime. </p>
<p>In 2015, a Chadian court <a href="https://books.google.com.ng/books?id=EKDgDwAAQBAJ&pg=PA348&lpg=PA348&dq=In+2015,+a+Chadian+court+convicted+a+number+of+former+security+agents+of+the+regime+and+ordered+CFA+75+billion+to+around+7,000+civil+parties,&source=bl&ots=xr1vavNJU3&sig=ACfU3U3B_Uwnx91yCUGRqjgZj3-jzqjZLA&hl=en&sa=X&ved=2ahUKEwiM_uib2IPzAhUHJBoKHdz2ByMQ6AF6BAgCEAM#v=onepage&q=In%202015%2C%20a%20Chadian%20court%20convicted%20a%20number%20of%20former%20security%20agents%20of%20the%20regime%20and%20ordered%20CFA%2075%20billion%20to%20around%207%2C000%20civil%20parties%2C&f=false">convicted</a> a number of former security agents of the regime and ordered payment of CFA 75 billion (US$ 135 million) to around 7,000 civil parties, stipulating that 50% be carried by the Chadian state. </p>
<p>The court also ordered that a memorial be established for those who were killed and that the former security police premises be turned into a museum. </p>
<p>The Chadian authorities have failed to implement any of these measures. </p>
<p>In 2017, the victims <a href="https://redress.org/casework/clementabaifoutaand6999othersvtherepublicofchadhissene-habre-case/">filed a complaint </a>against the Chadian government before the African Commission on Human and Peoples’ Rights for failing to comply with the judgement. It requested that the Commission refer the case to the <a href="https://www.african-court.org/wpafc/">African Court on Human and Peoples’ Rights</a>. UN special rapporteurs also expressed their concern on the failure. </p>
<p>The case highlights that Chad’s role is not only to facilitate Extraordinary African Chambers reparations in concert with the AU, but also to acknowledge and bear its own responsibility for the violations committed by its state agents. </p>
<p>Recent <a href="https://www.reuters.com/world/africa/chadian-security-forces-clash-with-protesters-denouncing-military-takeover-2021-05-19/">unrest</a> in Chad and the <a href="https://www.aljazeera.com/news/2021/4/20/chads-president-deby-has-died-of-injuries">death</a> of President Idris Déby Itno in April have directed much needed attention further away from reparations.</p>
<p>There are fears that the reparations process will turn into another lengthy effort that could rival the decade-long odyssey that was required to prosecute Habré. </p>
<p>For the victims, the clock is ticking – hundreds of mostly elderly civil parties are already <a href="https://www.justiceinfo.net/en/81192-habre-death-final-blow-or-wake-up-call-reparations.html">dead</a> and will never see the compensation they were owed.</p><img src="https://counter.theconversation.com/content/168115/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christoph Sperfeldt does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>For Hissene Habre’s victims, the clock is ticking –many elderly ones have already died and will never see the compensation they were owed.Christoph Sperfeldt, Honorary Fellow, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1132212019-03-15T11:56:59Z2019-03-15T11:56:59ZNew UN guidelines to mainstream human rights in the global drugs debate<p>It’s 110 years since international cooperation on drug control began. In February 1909 the <a href="https://www.unodc.org/unodc/en/frontpage/this-day-in-history-the-shanghai-opium-commission-1909.html">International Opium Commission in Shanghai</a> saw governments from around the world come together to address what was dubbed “the opium question”, by proposing a global plan to suppress illicit opium use and markets. The meeting kicked off a century-long project of ever increasing international collaboration to eradicate illicit drug use and markets, culminating in the <a href="https://www.unodc.org/unodc/treaties/">three United Nations drug treaties</a> adopted in 1961, 1971 and 1988.</p>
<p>Since the 1970s, and the start of the “<a href="https://www.history.com/topics/crime/the-war-on-drugs">war on drugs</a>”, these efforts have been marked by the increasing use of laws focused on punishment, policing, prisons and even the military as core tools of drug enforcement. Alongside this there has also been an escalation of human rights violations linked to drug control.</p>
<p>While ignored for many decades, the human rights consequences of drug enforcement are an increasing concern within UN bodies. In some cases, this is the result of years of <a href="https://www.hri.global/contents/561">patient campaigning</a> by civil society organisations and <a href="https://www.hr-dp.org/contents/1532">affected communities</a>. In others, it has been triggered by gross human rights violations linked to drugs, such as <a href="https://www.rappler.com/newsbreak/investigative/tondo-vigilante-gang-war-on-drugs-series-conclusion">state killings</a>, the <a href="https://www.hri.global/files/2019/02/22/HRI_DeathPenaltyReport_2019.pdf">death penalty for drug offenders</a> and HIV epidemics <a href="http://www.unaids.org/sites/default/files/media_asset/JC2954_UNAIDS_drugs_report_2019_en.pdf">driven by unsafe injecting drug use</a>.</p>
<p>While this attention is welcome, it has <a href="https://www.cambridge.org/core/books/drug-control-and-human-rights-in-international-law/F741DAD5332289EE22DB1718D8B89F5B">rarely resulted</a> in systematic or operational change within UN mechanisms to ensure the protection of human rights. But this is now beginning to change.</p>
<h2>Joint commitment</h2>
<p>In early March, the Chief Executives Board of the United Nations, representing 31 UN agencies – including the World Health Organisation, UNICEF, the High Commissioner for Human Rights and the UN Office on Drugs and Crime – adopted a common <a href="https://www.unsceb.org/CEBPublicFiles/CEB-2018-2-SoD.pdf">position on drug policy</a>. Among the actions agreed is was a commitment to “support the development and implementation of policies that put people, health and human rights at the centre … and to promote a rebalancing of drug policies and interventions towards public health approaches”. </p>
<p>This agreement creates potential for significant policy evolution on drugs within the UN as a whole. However, the vast majority of human rights violations driven by drug control – <a href="https://www.hri.global/files/2019/02/22/HRI_DeathPenaltyReport_2019.pdf">executions</a>, <a href="https://www.project-syndicate.org/commentary/bangladesh-deadly-war-on-drugs-by-naomi-burke-shyne-2018-10?barrier=accesspaylog">killings</a>, <a href="https://www.timeslive.co.za/amp/sunday-times/lifestyle/2016-03-27-killing-the-economic-lifeblood-of-the-eastern-capes-weed-producing-people/">involuntary crop eradication</a>, <a href="https://www.reuters.com/article/us-drugs-thailand-prisons/soaring-prison-population-prompts-thailand-to-re-think-lost-drug-war-idUSKCN0ZX01J">mass incarceration</a>, <a href="http://newjimcrow.com/">racist policing</a>, <a href="https://www.opensocietyfoundations.org/publications/expecting-better-improving-health-and-rights-pregnant-women-who-use-drugs">gender-based violence</a>, <a href="https://www.dejusticia.org/en/publication/palliative-care-and-their-status-in-latin-america/">denial of life saving health programmes</a>, to name a few – are not the result of UN inaction. They are driven by national laws and policies that member state governments implement to, in their view, fulfil UN drug treaties obligations.</p>
<p>Over the past decade, some countries have begun to review and reform these harmful rules, promoting societal well-being and reducing the harms of illicit drug economies. Judicial reviews of the criminalisation of possession for personal use have taken place in <a href="http://sjconsulta.csjn.gov.ar/sjconsulta/%20documentos/verUnicoDocumento.html?idAnalisis=671140">Argentina</a> and <a href="http://www.saflii.org.za/za/cases/ZACC/2018/30.pdf">South Africa</a>, for example. There have been <a href="https://www.release.org.uk/sites/default/files/pdf/publications/A%20Quiet%20Revolution%20-%20Decriminalisation%20Across%20the%20Globe.pdf">national referendums on promoting health in drug policy</a> in Italy and Switzerland, and <a href="https://www.newsweek.com/where-weed-legal-around-world-you-can-now-officially-smoke-pot-canada-1173623">legislative reviews of cannabis laws</a> in Uruguay, Canada and some US states.</p>
<p>Despite this progress, far too many countries remain entrenched in the war on drugs approach, and human rights violations are still taking place as a result. Member states’ divergent approach has resulted in increasingly fragmented political discourse in UN forums too. Human rights discussions are divisive, and commitments to promote them largely rhetorical or lost in diplomatic translation. </p>
<h2>From questions to solutions</h2>
<p>The stagnation of these political debates has often obscured progressive developments on <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=2ahUKEwiH5ayAyIHhAhXMcJoKHTIIAuMQFjABegQICBAC&url=https%3A%2F%2Fwww.ohchr.org%2Fen%2Fhrbodies%2Fhrc%2Fregularsessions%2Fsession30%2Fdocuments%2Fa_hrc_30_65_e.docx&usg=AOvVaw3Yv1gkE3TcC4g761wyXMjO">human rights</a> and <a href="https://www.unodc.org/documents/justice-and-prison-reform/UNODC_Human_rights_position_paper_2012.pdf">drug control</a> elsewhere in the UN. What has been missing to bridge this gap is a shared tool to clarify global human rights conversations and guide national reform. Which is just what we, as part of a team of international experts, have now published with United Nations Development Program, World Health Organisation and UNAIDS as the <a href="https://www.humanrights-drugpolicy.org/">International Guidelines on Human Rights and Drug Policy</a>.</p>
<p>Based on established international legal standards, these guidelines cover 27 principles that span the drug market from cultivation to consumption. It is also a catalogue that reflects the expansive human experience of drug control, from cancer patients travelling days to receive morphine, to the struggles of indigenous peoples to protect their sacred relationship with psychoactive plants, to the people who are criminalised for using drugs and denied essential harm reduction services.</p>
<p>The guidelines do not create new laws, but centralise existing human rights standards in the context of drug control. They provide concrete guidance on what states can and should do to promote the safety, security, well-being and rights of their communities. Following their launch, sub-regional and national dialogues with key government, civil society and academic stakeholders are being planned to localise and demonstrate the practical power of these standards.</p>
<p>The century-old international drug control monolith was not erected overnight. Nor will it be reformed or dismantled overnight. That process will take time and determination, and commitment to prioritising evidence, health and rights in national and international lawmaking. The guidelines are one milestone in that journey towards reform, one that we hope helps shift the focus of global drug policy away from “the opium question” to “the rights solution”.</p><img src="https://counter.theconversation.com/content/113221/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Rick Lines is co-founder and Chair of the International Centre on Human Rights and Drug Policy, which is one of partners on the project described in this article.</span></em></p><p class="fine-print"><em><span>Julie Hannah is the Director of the International Centre on Human Rights and Drug Policy at the University of Essex (HRDP) and receives funding from the Global Partnership on Drug Policies and Development, implemented by GIZ on behalf of the German Federal Ministry for Economic Cooperation and Development; the Swiss Federal Department of Foreign Affairs; and the United Nations Development Programme to develop and/or implement the International Guidelines on Human Rights and Drug Policy. The Guidelines are published by the HRDP, United Nations Development Program, World Health Organization and UNAIDS.</span></em></p>The UN’s new rights focus has the potential to overhaul the punitive nature of the war on drugs.Rick Lines, Associate Professor of Crimininology and Human Rights, Swansea UniversityJulie Hannah, Director, International Centre on Human Rights and Drug Policy, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/723422017-02-14T02:15:26Z2017-02-14T02:15:26ZShould cybersecurity be a human right?<figure><img src="https://images.theconversation.com/files/156427/original/image-20170210-23321-bmhce2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Digital information should be private and secure.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/hands-people-hold-phone-laptop-tablet-106421822">Digital communications via shutterstock.com</a></span></figcaption></figure><p>Having access to the internet is increasingly <a href="https://www.internetsociety.org/sites/default/files/GIUS2012-GlobalData-Table-20121120_0.pdf">considered</a> to be an emerging human right. International organizations and national governments have begun to formally recognize its importance to freedom of speech, expression and information exchange. The next step to help ensure some measure of <a href="http://cyberlaw.stanford.edu/publications/law-cyber-peace">cyber peace</a> online may be for cybersecurity to be recognized as a human right, too.</p>
<p>The United Nations has taken note of the crucial role of internet connectivity in “<a href="https://www.itu.int/dms_pub/itu-s/opb/gen/S-GEN-WFS.01-1-2011-PDF-E.pdf">the struggle for human rights</a>.” United Nations officials have decried the <a href="http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21165&LangID=E">actions of governments cutting off internet access</a> as denying their citizens’ rights to free expression. </p>
<p>But access is not enough. Those of us who have regular internet access often suffer from <a href="https://theconversation.com/overcoming-cyber-fatigue-requires-users-to-step-up-for-security-70621">cyber-fatigue</a>: We’re all simultaneously expecting our data to be hacked at any moment and feeling powerless to prevent it. Late last year, the Electronic Frontier Foundation, an online rights advocacy group, called for technology companies to “<a href="https://supporters.eff.org/donate/eff-wired">unite in defense of users</a>,” securing their systems against intrusion by hackers as well as government surveillance.</p>
<p>It’s time to rethink how we understand the cybersecurity of digital communications. One of the U.N.’s leading champions of free expression, <a href="http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/DavidKaye.aspx">international law expert David Kaye</a>, in 2015 called for “<a href="https://www.swp-berlin.org/fileadmin/contents/products/research_papers/2016RP07_bdk.pdf">the encryption of private communications to be made a standard</a>.” These and other developments in the international and business communities are signaling what could be early phases of declaring cybersecurity to be a human right that governments, companies and individuals should work to protect.</p>
<h2>Is internet access a right?</h2>
<p>The idea of internet access as a human right is not without controversy. No less an authority than Vinton Cerf, a “<a href="http://internethalloffame.org/inductees/vint-cerf">father of the internet</a>,” has argued that <a href="http://www.nytimes.com/2012/01/05/opinion/internet-access-is-not-a-human-right.html">technology itself is not a right</a>, but a means through which rights can be exercised. </p>
<p>All the same, <a href="http://foreignpolicy.com/2015/02/02/unrestricted-internet-access-human-rights-technology-constitution/">more and more nations</a> have declared their citizens’ right to internet access. Spain, France, Finland, Costa Rica, Estonia and Greece have codified this right in a variety of ways, including in their constitutions, laws and judicial rulings.</p>
<p>A former head of the U.N.’s global telecommunications governing body <a href="http://news.bbc.co.uk/2/hi/technology/8548190.stm">has argued</a> that governments must “regard the internet as basic infrastructure – just like roads, waste and water.” <a href="http://news.bbc.co.uk/2/hi/technology/8548190.stm">Global public opinion</a> seems to overwhelmingly agree.</p>
<p>Cerf’s argument may, in fact, strengthen the case for cybersecurity as a human right – ensuring that technology enables people to exercise their rights to privacy and free communication.</p>
<h2>Existing human rights law</h2>
<p>Current international human rights law includes many principles that apply to cybersecurity. For example, Article 19 of the <a href="http://www.un.org/en/universal-declaration-human-rights/">Universal Declaration of Human Rights</a> includes protections of freedom of speech, communication and access to information. Similarly, Article 3 states “Everyone has the right to life, liberty and security of person.” But <a href="http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1852&context=fss_papers">enforcing these rights is difficult</a> under international law. As a result, many countries <a href="http://map.opennet.net/">ignore the rules</a>.</p>
<p>There is cause for hope, though. As far back as 2011, the U.N.’s High Commission for Human Rights said that human rights are <a href="http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf">equally valid online as offline</a>. Protecting people’s privacy is no less important when handling paper documents, for instance, than when dealing with digital correspondence. The U.N.’s Human Rights Council <a href="http://www.osce.org/fom/250656">reinforced that stance</a> in 2012, 2014 and 2016. </p>
<p>In 2013, the U.N. General Assembly itself – the organization’s overall governing body, comprising representatives from all member nations – voted to confirm people’s “<a href="http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/68/167">right to privacy in the digital age</a>.” Passed in the wake of revelations about <a href="https://www.theguardian.com/us-news/the-nsa-files">U.S. electronic spying around the globe</a>, the document further endorsed the importance of protecting privacy and freedom of expression online. And in November 2015, the G-20, a group of nations with some of the world’s largest economies, similarly endorsed privacy, “<a href="https://www.g20.org/Content/DE/_Anlagen/G7_G20/2015-g20-abschlusserklaerung-eng.pdf?__blob=publicationFile&v=3">including in the context of digital communications</a>.”</p>
<h2>Putting protections in place</h2>
<p>Simply put, the obligation to protect these rights involves developing new cybersecurity policies, such as encrypting all communications and discarding old and unneeded data, rather than keeping it around indefinitely. More <a href="https://business-humanrights.org/sites/default/files/media/documents/applications-of-framework-jun-2011.pdf">firms are using</a> the <a href="http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf">U.N.’s Guiding Principles</a> to help inform their business decision-making to promote human rights due diligence. They are also using U.S. government recommendations, in the form of the <a href="https://www.nist.gov/cyberframework">National Institute for Standards and Technology Cybersecurity Framework</a>, to help determine how best to protect their data and that of their customers.</p>
<p>In time, the tide will likely strengthen. Internet access will become more widely recognized as a human right – and following in its wake may well be cybersecurity. As people use online services more in their daily lives, their expectations of digital privacy and freedom of expression will lead them to demand better protections. </p>
<p>Governments will respond by building on the foundations of existing international law, formally extending into cyberspace the human rights to privacy, freedom of expression and improved economic well-being. Now is the time for businesses, governments and individuals to prepare for this development by incorporating cybersecurity as a fundamental ethical consideration in telecommunications, data storage, corporate social responsibility and enterprise risk management.</p><img src="https://counter.theconversation.com/content/72342/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Scott Shackelford does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Recent developments at the United Nations and the G-20 suggest that the well-known human rights to privacy and freedom of expression may soon be formally extended to online communications.Scott Shackelford, Associate Professor of Business Law and Ethics, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/451792015-07-29T04:18:41Z2015-07-29T04:18:41ZWhy we need to tread carefully in drawing up human rights rules for business<figure><img src="https://images.theconversation.com/files/89634/original/image-20150724-7581-1nmm33v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Farm workers tend to a tobacco crop in Zimbabwe in 2014. The push to establish a business and human rights treaty is fraught with problems.</span> <span class="attribution"><span class="source">Reuter/Philimon Bulawayo</span></span></figcaption></figure><p><strong>Foundation essay:</strong> <em>This article is a foundation essay. These articles are longer than usual and take a wider look at a key issue.</em></p>
<p>Devising the rules for holding businesses responsible for the effects of their operations on human rights, which are <a href="http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx">inherent to all</a> human beings without discrimination, is an emotive and complicated subject that is best handled with caution.</p>
<p>The dizzying array of situations in which businesses affect human rights include the power relations between businesses, governments and those whose human rights have been affected by business.</p>
<p>The question is: how are human rights <a href="http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx">principles</a>, primarily designed to address the relations between governments and their citizens, adapted to also cover economic activity?</p>
<p>In 2011 the United Nations Human Rights Council endorsed the non-binding guiding principles on business and human <a href="http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf">rights</a>, which stipulate that states have a duty to protect human rights. It also charged all businesses - “regardless of their size, sector, location, ownership and structure” - with the responsibility to respect human rights. They also need to provide access to remedies for those harmed by corporate activities.</p>
<p>Last year Ecuador and South Africa, partly in response to concerns about the non-binding nature of the guiding principles, persuaded the UN Human Rights Council to establish an inter-governmental working <a href="http://business-humanrights.org/en/binding-treaty/un-human-rights-council-sessions">group</a> to prepare a business and human rights treaty. The working group recently held its first <a href="http://business-humanrights.org/en/binding-treaty/first-session-of-the-intergovernmental-working-group">meeting</a>.</p>
<p>The push to establish a business and human rights treaty is problematic given the current state of our knowledge of interactions between business and human rights. We can’t be confident that a binding treaty will not have unintended adverse consequences for the human rights of stakeholders in businesses or on their economic or environmental sustainability.</p>
<h2>When and how businesses are accountable</h2>
<p>The responsibility of businesses to respect human rights includes preventing human rights violations as well as remedying those that do occur. There are three situations in which human rights issues arise in the business context.</p>
<p><strong>Scenario 1: dealing with the past</strong></p>
<p>In these cases, there are undeniable human rights violations, such as deaths and injuries caused by poor mine health and safety <a href="http://www.miningsafety.co.za/newscontent/317/More-than-100-recorded-deaths-in-South-African-mines-last-year">practices</a>. The challenge in deciding if the company can be held responsible for them depends on issues such as:</p>
<ul>
<li><p>identifying the appropriate forum in which to bring an action,</p></li>
<li><p>determining how to establish jurisdiction over the corporate entity responsible for the violations,</p></li>
<li><p>and gathering the evidence needed to prove liability.</p></li>
</ul>
<p>While in practice these issues are complicated, conceptually, they can comfortably be resolved under existing human rights <a href="http://www.un.org/en/documents/udhr/">principles</a>.</p>
<p><strong>Scenario 2: Due Diligence and the single human right</strong></p>
<p>Consider the following situation: a pharmaceutical company has discovered that regular consumption of a cabbage leaf extract cures hypertension. The extract has no known side effects, is easy to use and is cheap. The company is planning to grow the cabbage and produce the extract on a farm that employs 100 workers. </p>
<p>The company’s plans indicate that it will need 70 farm workers and 30 workers in its production facility. None of the farm workers have the skills required for work in the production facility.</p>
<p>If the company decides to lay off 30 workers, its human rights due diligence indicates that the laid off farm workers will also lose their housing on the farm. The company can offer the workers a voluntary buyout and if that’s not enough, offer to compensate the laid-off workers financially or in kind. </p>
<p>Establishing whether this project is a positive one from a human rights perspective depends on our confidence in the due diligence studies. These include accepting the assumption that the company will only lay off 30 workers and that the compensation will be adequate at the time that they receive it. </p>
<p>Human rights principles can’t help us determine if these assumptions are realistic. But they can help us decide if the responses to them are adequate, subject to two limitations. First, it is reasonable to deal with the impact on the workers in isolation from the project’s other human rights impacts. Second, the human rights impact will not change significantly over the life cycle of this project.</p>
<p><strong>Scenario 3: comparing apples and oranges</strong></p>
<p>Assume the company decides to delay production for one year while it completes legal arrangements for exporting the product. Studies show this will substantially expand sales. </p>
<p>It plans to use the additional time to train the 30 laid off farm workers to work in the production facility, obviating the need to compensate them for the loss of their houses or jobs. But company studies show that the one-year delay will result in an additional 1000 premature deaths and an extra 2000 people disabled due to untreated hypertension.</p>
<p>For the company to decide what action to take on human rights grounds, it must decide whether to give more weight to the human rights losses/benefits of the farm workers or those of an unknown, but very real, group of hypertension sufferers and their families.</p>
<p>In addition, it must decide if it should give more weight to the rights to work and to housing or to the rights of access to health care and to life.</p>
<p>Traditionally human rights are <a href="http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx">viewed</a> as being indivisible, interdependent and interrelated. The notion that a company may need to choose which human rights it will protect is antithetical. It is not clear that human rights law has developed the conceptual tools to make these judgements. However, they are a necessary part of business planning.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/89651/original/image-20150724-8442-l234ka.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/89651/original/image-20150724-8442-l234ka.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/89651/original/image-20150724-8442-l234ka.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/89651/original/image-20150724-8442-l234ka.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/89651/original/image-20150724-8442-l234ka.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/89651/original/image-20150724-8442-l234ka.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/89651/original/image-20150724-8442-l234ka.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Employees work along a production line at a textile factory in Suzhou, Jiangsu province, China.</span>
<span class="attribution"><span class="source">Reuters</span></span>
</figcaption>
</figure>
<h2>Three lessons</h2>
<p>Because of the gaps in our knowledge, there are times that human rights principles cannot help managers make human rights compliant business planning decisions. In such situations, the wisdom of the precautionary principle suggests it would be imprudent to establish binding rules on how businesses should manage human rights issues before we fully understand how to draft such rules without causing unintended consequences. This is particularly important given how rapidly business is changing.</p>
<p>The second lesson is that the issue of business and human rights poses a challenge for human rights <a href="http://www.hg.org/human-rights.html">law</a> and human rights lawyers. Human rights law is premised on the proposition that human rights are indivisible, inter-dependent and <a href="http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx">interrelated</a>. </p>
<p>It has not yet worked out how to deal with human rights situations that require making trade-offs, setting priorities, and managing risk. These are standard in business. This suggests that, before agreeing a binding human rights and business treaty there is a need for more research on how to adapt the fundamental propositions of human rights law to economic and business activity.</p>
<p>Third, given the multi-disciplinary nature of the issues involved, the UN Human Rights Council is not the most effective forum for negotiating a treaty. It risks duplicating discussions in other settings. Examples include debates about the most appropriate environmental and social safeguard policies for the newly established development banks, like the <a href="http://ndbbrics.org/">BRICS bank</a>, and the discussions about investment issues in the <a href="http://www.g20.utoronto.ca/members.html">G20</a>. These discussions, in which human rights experts are not full participants, would benefit from the inputs of the UN Human Rights <a href="http://www.ohchr.org/en/hrbodies/hrc/pages/hrcindex.aspx">Council</a>.</p>
<h2>The next steps</h2>
<p>We are not ready for a business and human rights treaty and the efforts to create one are misdirected. Those who want more human rights compliant business practices should dedicate their efforts to developing our knowledge of how businesses actually incorporate human rights considerations into their planning and operations. Likewise, how to adapt human rights principles to respond to these practices. </p>
<p>This knowledge can be used to strengthen the <a href="http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf">General Principles</a> and to develop procedures and practices that help reduce human rights violations by businesses. It can also be used to advocate for better and more human rights compliant practices in their projects and policies.</p>
<p>The Human Rights Council should focus its efforts in two areas where it has a comparative advantage. First, while our knowledge of human rights compliant business practices is limited, we have a good understanding of the floor below which corporate conduct cannot fall without causing substantial human rights violations. The council should develop clear rules to prohibit corporate conduct that falls below this level.</p>
<p>Second, the Council should focus on encouraging states, businesses and international organisations to develop forums, mechanisms and procedures through which those who feel their human rights have been harmed by business can seek redress.</p><img src="https://counter.theconversation.com/content/45179/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danny Bradlow does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Traditionally human rights are viewed as being indivisible, interdependent and interrelated. The notion that a company may need to choose which human rights it will protect is antithetical.Danny Bradlow, SARCHI Professor of International Development Law and African Economic Relations, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/408252015-05-10T20:09:11Z2015-05-10T20:09:11ZIs Australia as bad as IS? Skewed criticism may leave you wondering<p>Perpetrator of crimes against humanity, ethnic cleansing and cultural genocide. Documented serial violator of international law and the most fundamental human rights. Complicit in territorial aggression. </p>
<p>All these accusations, and countless more like them, have recently been made by mainstream commentators, respected academics and official international figures. </p>
<p>Of whom do they speak? Australia, of course. </p>
<p>But does such insistent, brutal critique create a misleading picture of actual moral performance?</p>
<h2>Relentless, powerful criticism</h2>
<p>Most readers will be familiar with these accusations. Australia’s treatment of asylum seekers attracts well-publicised accusations of <a href="https://theconversation.com/will-the-international-criminal-court-prosecute-australia-for-crimes-against-humanity-33363">crimes against humanity</a> and prompts serial reports of its <a href="http://hrlc.org.au/un-finds-australias-treatment-of-asylum-seekers-violates-the-convention-against-torture/">serious breaches of human rights</a>. Australia has recently been accused of <a href="http://www.theguardian.com/australia-news/2015/apr/23/un-forum-backs-fight-against-closure-of-remote-aboriginal-communities-in-wa">racist and discriminatory</a> acts of <a href="http://www.abc.net.au/local/stories/2015/03/12/4196442.htm">cultural genocide</a>, <a href="http://thestringer.com.au/ethnic-cleansing-said-dennis-eggington-of-forcible-removals-off-country-9213#.VT7sXCGqpBc">ethnic cleansing</a> and “<a href="http://www.theguardian.com/commentisfree/2015/apr/22/by-evicting-the-homelands-australia-has-again-declared-war-on-indigenous-people">acts of war</a>” for proposals to remove basic services to its remote indigenous communities. Australia’s (lack of) action on climate change allegedly amounts to <a href="http://greens.org.au/abbotts-crimes-against-climate">crimes against humanity</a> and its involvement in Middle East conflicts is tantamount to the <a href="http://lis.net.au/marijonas/howard.htm">crime of aggression</a>.</p>
<p>Meanwhile, <a href="http://www.probonoaustralia.com.au/news/2015/02/grim-outlook-human-rights-australia-report">major human rights reports</a> highlight a “grim outlook” for Australia. </p>
<p>It is little wonder that respected international figures should thus <a href="http://hrlc.org.au/wp-content/uploads/2014/09/AdvancedCopy_HRCOpeningStatement_Sep2014.pdf">mention Australia</a> in the same breath as brutal regimes like Islamic State (IS), Syria and North Korea.</p>
<h2>Actual moral performance</h2>
<p>With all this in mind, you might be surprised where Australia sits in global human rights rankings. Australia consistently places in the very top echelon of such rankings, as seen <a href="http://gnrd.net/seemore.php?id=565">here</a>, <a href="https://freedomhouse.org/report/freedom-world/2014/australia#.VTxMzSGqpBc">here</a> and <a href="http://maplecroft.com/portfolio/new-analysis/2014/12/03/human-rights-deteriorating-most-ukraine-thailand-turkey-due-state-repression-civil-unrest-maplecroft-human-rights-risk-atlas/">here</a>. Equally, it is a strong performer on <a href="http://www.transparency.org/country#AUS">governance values</a>, <a href="http://www.transparency.org/country#AUS">democracy indexes</a> and <a href="http://www.bloomberg.com/news/articles/2015-04-23/these-are-the-happiest-countries-in-the-world">combined measures of happiness</a>. </p>
<p>There is a reason desperate refugees flood to Australia, rather than flee from it.</p>
<h2>What explains this gap?</h2>
<p>Of course, one can be comparatively a top performer and still be plagued with serious problems. But instead of using language appropriate to talking about serious problems, commentators routinely invoke notions of horrifying criminality. Through talk of genocide and atrocity, commentators often fail to distinguish between, on the one hand, savage slaughter and full-throttle repression and, on the other, rash, botched, insensitive, unilateral, ham-fisted or politicised responses to genuinely tough ethical questions. </p>
<p>Equally, the debate can be skewed towards criticism. Political discourse, media and activism are all prone to invoking crisis, sensation and scandal. </p>
<p>Even academia is not immune. Social “critique” rightly bears a special place in academic life, but can direct attention towards what is going wrong, rather than what is going right. </p>
<p>Some of these practices – for example, politicians’ confected outrage – are lamentable. Other practices, such as academics and independent bodies speaking truth to power, are vital. Nevertheless, these many different phenomena combine to paint a misleadingly depressing picture of the country’s moral landscape.</p>
<h2>But aren’t there benefits?</h2>
<p>Even if the picture is skewed towards critique, real benefits arise. A negative slant can head off the natural tendency towards venerating one’s own community. Such a tendency can tempt us towards ugly nationalism or delusions about inherent cultural superiority. </p>
<p>Having high local expectations can also help secure important reforms and prevent complacency. For example, by congratulating ourselves on our high global rankings, Australians might spurn the call for <a href="http://hrlc.org.au/a-human-rights-act-for-all-australians">new human rights legislation</a> — even though this might be a <a href="http://www.probonoaustralia.com.au/news/2015/04/qld-nfp-calls-human-rights-act#">powerful method</a> for responding to the serious problems we do face.</p>
<h2>But at what cost?</h2>
<p>Hyperbole can undercut support for important causes when <a href="http://www.culturalsurvival.org/publications/cultural-survival-quarterly/genocide-ethnocide-or-hyperbole-australias-stolen">objective, balanced argument would work better</a>. </p>
<p>Rather than changing their behaviour, people might switch off from critique. They might see the United Nations and human rights itself as nothing but unrelenting sources of shame and rebuke. </p>
<p>So, too, can other countries easily brush aside Australia’s entreaties to respect rights and international law. Who are we to preach to others — like Russia or Indonesia — if our own brand is irreparably tainted (as <a href="http://www.theaustralian.com.au/national-affairs/immigration/ambassador-points-to-detention-centres-defends-irans-rights-record/story-fn9hm1gu-1227313375648">Iran</a> recently queried)?</p>
<p>But perhaps the most serious ramifications of this cultural phenomenon lie in the potentially corrosive effect on ordinary people’s moral character. </p>
<p>Like every society, Australia needs to encourage reasonable allegiance and commitment to its social and political processes. We are all shocked when young people choose to betray Australia’s values by <a href="http://www.theguardian.com/australia-news/2015/apr/26/australian-doctor-stars-in-isis-video-urging-others-to-join-him-in-syria">joining a genocidal regime like IS</a>. Yet our own “public relations” efforts showcase our flaws, not our successes.</p>
<p>If people give up on the society around them, then they can tend to excuse their own moral failings and self-righteously disconnect from political life. Why play fair if the system is corrupt?</p>
<p>Finally, while it can feel good to scold wrongdoers, encouragement sometimes works better for achieving results. </p>
<p>In the current environment, Australians would struggle to feel any kind of “cultural ownership” of human rights. This is a real shame. From the most inauspicious beginnings, Australians have built their country into an extraordinary human rights success story. </p>
<p>They should be inspired to go on living up to that status.</p><img src="https://counter.theconversation.com/content/40825/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Breakey does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia’s human rights record isn’t perfect, but it still good. if Australians aren’t able to take some pride in that and be inspired to do even better, over-the-top criticism could backfire.Hugh Breakey, Moral philosopher, Institute for Ethics, Governance and Law, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.