‘Morally Unconscionable’ Approach to Cholera in Haiti, Feeds Belief that Rights of Neediest Can be Trampled, Says Special Rapporteur
The Third Committee (Social, Humanitarian and Cultural) continued its discussion of human rights today, with six Special Rapporteurs updating on ways to improve respect for the rights to food, water and adequate living standards, especially following the 2010 outbreak of cholera in Haiti that had claimed 10,000 lives.
In one of the strongest calls for the United Nations to live up to its founding values, Philip Alston, Special Rapporteur on extreme poverty and human rights, decried the Organization’s handling of the cholera outbreak as a “disaster” that had reinforced a perception it could “trample with impunity” on the rights of those in need.
The United Nations had abdicated its responsibility, he said, by refusing to accept factual responsibility for introducing the epidemic, insisting that no legal claim for negligence could be brought against it and refusing to approve compensation or issue apologies. The Office of Legal Affairs had blocked necessary legal action, while the United States had refused to even state its legal position. That approach was “morally unconscionable, legally indefensible, politically self-defeating and entirely unnecessary”, he asserted.
To reverse course, he urged the United Nations to follow the procedure laid out in the Convention on Privileges and Immunities for providing an appropriate mode of settlement for victims. It should also replace the “fundamentally flawed” 2013 legal advice with a procedure that enabled such claims to be resolved in a manner that both protected the Organization’s immunity and avoided the impunity that the Legal Affairs Office sought to enshrine. Member States should back their words of sympathy with generous contributions to the newly established Trust Fund. He also noted that his presentation was not immediately available via webcast, as was standard practice for all Committee meetings.
To comments by Haiti’s delegate, and others, he said the Organization had been tarnished not simply by its failure to compensate victims, but by the “ludicrous and disgraceful failure” of the Secretary-General to acknowledge why cholera had arrived in Haiti. If it wanted to show it was accountable in the face of major human rights violations, its actions in Haiti were a perfect opportunity.
Hilal Elver, Special Rapporteur on the right to food, emphasized that the right to adequate food should be interpreted as a right to a standard of nutritional quality, not as a right to a minimum number of calories. The food system, dominated by industrial production, had created dependence on highly processed, energy-dense yet nutrient-poor foods that caused unhealthy eating habits to rise globally. She expressed particular concern over aggressive marketing that promoted unhealthy foods and sugary beverages, especially to children and untapped markets in developing nations.
In the ensuing dialogue, the representative of the United States voiced strong objections to the report, particularly its policy prescriptions on tax law, marketing and advertising. She rejected its characterization of international law and the connection made between malnutrition and trade, food and intellectual property, urging the Special Rapporteur to develop recommendations “consistent with facts”.
While acknowledging that the United States was the world’s largest food aid donor, Ms. Elver said “the world would also like to feed themselves,” and it was thus important to establish a system that was not under the control of major corporations.
Along similar lines, Leilani Farha, Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, said an estimated one-third of deaths worldwide were linked to poverty and inadequate housing, making the link between those issues and the right to life both obvious and disturbing.
To comments by the United Kingdom’s delegate, who said she did not recognize the link between the rights to adequate housing and to life, and to concern expressed by Brazil’s delegate about conflating the two, Ms. Farha explained that the right to adequate housing was not included in some countries’ constitution or human rights legislation. In such cases, it was difficult for people to claim or have remedy for violations of that right. Most constitutions, however, did contain provisions on the right to life which, if read less narrowly, could offer that avenue.
The Third Committee also heard presentations by the Special Rapporteurs on the right to education; the human rights to safe drinking water and sanitation; and the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The Third Committee will resume its work at 10 a.m. on Wednesday, 26 October, to continue its discussion on the promotion and protection of human rights.
The Third Committee (Social, Humanitarian and Cultural) met today to continue its debate on the promotion and protection of human rights. For further information, see Press Release GA/SHC/4172.
Introductory Statements and Interactive Dialogues
HILAL ELVER, Special Rapporteur on the human right to food, presented her third report (document A/71/282), emphasizing that the right to adequate food should be interpreted as a right to a standard of nutritional quality, not as a right to a minimum number of calories. Nearly 800 million people were undernourished, more than 2 billion suffered micronutrient deficiencies, and another 600 million were obese. Reviewing international policy initiatives to address the problem, such as the 2030 Agenda, she said recent figures had shown that the world was not on track to reach its global targets. The food system, dominated by industrial production, had created dependence on highly processed, energy-dense yet nutrient-poor foods that caused unhealthy eating habits to rise globally. She was particularly concerned by aggressive marketing that promoted unhealthy foods and sugary beverages, especially to children and untapped markets in developing nations.
Discussing nutrition within a rights-based framework was critical to ensuring that marginalized and vulnerable populations were guaranteed a certain level of nutrition and health, she said, rather than the minimum intake needed for survival. The human rights framework underlined food corporations’ responsibility to respect human rights; in turn, States were obliged to protect citizens from unchecked market influence. Stronger accountability was needed at the national level to control the corporate food industry. Companies’ promotion of ineffective voluntary commitments or sponsorship of nutrition and health education programmes as part of “corporate social responsibility” blurred the lines between education and marketing. It was crucial that States were encouraged to implement comprehensive plans to combat malnutrition, tailored to meet domestic needs.
When the floor was opened, several delegates expressed their support for the Special Rapporteur and asked her to elaborate on measures that States and private corporations could take to improve nutrition. The United States’ representative, however, voiced strong objections to the report, particularly its policy prescriptions on tax law, marketing and advertising. She rejected the report’s characterization of international law and the connection it made between malnutrition and trade, food and intellectual property, and urged the Special Rapporteur to develop recommendations “consistent with facts”.
Ms. ELVER explained that although the Sustainable Development Goals had shied away from the concept of a “right to food”, it was nonetheless referred to indirectly; for instance, through the Goal of eliminating hunger. The private sector, as part of the nutrition industry, must be engaged, she said, recalling that the Goals emphasized the role of public-private initiatives. She recommended that private corporations be regulated at the domestic level so that their profits did not come at the expense of public services.
She applauded Poland’s efforts to deal with obesity, and in response to that country’s request for her policy recommendations, suggested stronger limitations on advertisements that went beyond voluntary measures. She welcomed the question by Morocco’s delegate on counteracting the promotion of industrialized food, particularly through advertisements, and agreed that it was problematic to have large corporations that sold sugary drinks and junk food sponsoring the Olympics.
Addressing the United States’ delegate’s rejection of her characterization of international human rights, she recalled that the human rights principles outlined in her report had been accepted by 160 countries. “I didn’t invent these principles,” she said. While she acknowledged that the United States was the largest food aid donor in the world, “the world would also like to feed themselves,” she stressed. It was therefore important to establish a system that was not under the control of major corporations.
Also speaking were representatives of Turkey, Iran, Poland, Switzerland, Cameroon, Indonesia and Eritrea, as well as the European Union.
On the right to education
KOUMBA BOLY BARRY, Special Rapporteur on the right to education, presented the report (document A/71/358) of her predecessor Kishore Singh, stressing the importance of lifelong learning, the right to education and the emerging “right to learning”. The report examined State responsibility and the role of social partners in realizing the right to education, she said, recalling that in 2015, States had adopted a “2030 Agenda for Education” to promote learning and training. The report underlined the importance of learning and education in the context of the 2030 Agenda for Sustainable Development, opportunities that not only benefited students, but also employers, civil society and society as a whole.
The report recognized the importance of information and communications technology, she said, noting that universal access and educational quality were essential in advancing the right to education. Innovations in education must be harnessed, access decentralized and resources mobilized, she said, urging that all stakeholders and social partners must be included, students and their parents among them. Further, special attention must be paid to girls and women, especially in Africa, with equal consideration given to formal and informal education.
Delegates then asked how lifelong learning could be ensured, what could be done to maintain access to education in emergency situations and about potential contributions of the private sector. They also asked about the role of information and communications technology in advancing the right to education.
Ms. KOUMBA BOLY replied that fulfilling the vision of lifelong learning required a holistic strategy that included all levels of formal and informal education. Stressing that universal access must be ensured, she said the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Labour Organization (ILO) promoted tools that encouraged a holistic and decentralized approach.
Further, learning must adapt to new forms of mobility, she said. There were good examples of private sector participation in Switzerland and the Republic of Korea, she said, noting that public-private partnerships should be formed carefully so they did not negatively impact development. Resource allocation was also crucial, as was proper management and transparency, and in that context, she encouraged the “Global Partnership for Education” to continue raising awareness and resources. Given the often limited State resources, the private sector’s contribution was essential, especially in ensuring lifelong learning in emergency situations.
Participating in the interactive dialogue were representatives of South Africa, Portugal, Iran, Mexico, Qatar, Norway, Morocco, Maldives, Cameroon and Indonesia, as well as the European Union.
On Extreme Poverty
PHILIP ALSTON, Special Rapporteur on extreme poverty and human rights, said that six years ago United Nations peacekeepers had brought cholera to Haiti, resulting in 10,000 deaths and 800,000 people infected, adding up to 8 per cent of its total population. The United Nations had opted to abdicate its responsibility by refusing to accept factual responsibility for the introduction of the epidemic, insisting that no legal claim for negligence could be brought against it, refusing to approve any compensation or issue apologies, and abstaining from promoting efforts to eradicate the epidemic. The approach was a “disaster” as it “enshrined a double standard which exempts the United Nations itself from having to respect human rights”, he said, underscoring that it reinforced the perception that United Nations peacekeeping operations “can trample with impunity on the rights of those being protected”. That approach was “morally unconscionable, legally indefensible, politically self-defeating and entirely unnecessary”.
While the United Nations had reversed course on some aspects of its Haiti cholera policies, he said, no formal acceptance or apology, recognition of legal responsibility, agreement on the use of terms such as “compensation” or “reparations” or legal settlements had been made. The Office of Legal Affairs had insisted that the United Nations must avoid accepting responsibility. However, there was no legal basis to justify elevating an almost entirely hypothetical concern that a legal challenge to United Nations immunity could rise to a level where it trumped a case for respecting international legal obligations. “This is impunity masquerading as legal prudence,” he said. The United Nations should follow the procedure in the Convention on Privileges and Immunities to provide an appropriate mode of settlement for victims. In the absence of accountability, there were no incentives for practices to change, as exemplified in a 2014 report revealing that the United Nations Stabilization Mission in Haiti (MINUSTAH) had continued to discharge waste into public waterways. The United Nations should replace its fundamentally flawed 2013 legal advice with a procedure that enabled claims to be resolved in a manner that protected the Organization’s immunity, while avoiding impunity. Member States should also contribute to the newly established Trust Fund.
In the ensuing dialogue, Haiti’s delegate thanked the Special Rapporteur for his courage and sincerity, saying that his report had given him hope. The cholera outbreak had tarnished the United Nations, which was supposed to promote human dignity. Its response would be a “litmus test” for its commitment to human rights. He urged all Member States to show stronger political will to work together to provide reparations, which were a crucial principle of international law.
Mr. ALSTON said that while he was pleased with a proposal to mobilize $400 million in assistance, the basis on which that was being done was unsatisfactory in that it did not address the issue of impunity. “All of us need to bear in mind that it could be us,” he said, adding that the United Nations’ reputation was also at stake. It was unacceptable that it had refused to establish a mode of settlement per the terms of the Convention on Privileges and Immunities.
Welcoming the support expressed by Jamaica’s delegate, he said he had a “terrible feeling” that there had been little discussion among “those who hold power” among Member States and within the Secretariat about the policy on immunity. Moreover, it was troubling that the United Nations had refused to share its legal opinion, describe it in any detail or attempt to justify it. He called out the United States for not standing up and expressing its legal position. Instead, it had used the excuse of ongoing litigation to consistently evade comment. While he commended members of the United States Congress for speaking out and calling on the United Nations to do the right thing, he expressed concern that they did not understand the key role of the United States, which had not stated explicitly that, when a private law matter of such magnitude occurred, compensation should be paid in accordance with international law.
Civil society members had an absolutely central role to play going forward, he said, urging them to keep pressure up on Member States. He voiced hope that the new Secretary-General would reconsider the matter, making good on his own statement that “immunity is not impunity”. He agreed with the Russian Federation’s delegate that immunity was important, but in cases of negligence, there must be a settlement by the United Nations. He also agreed with South Africa’s delegate about the importance of holding corporations accountable for their actions. While it was true that the contractor involved in the cholera outbreak was negligent, it had been employed by the United Nations. “The negligence was part of the contract”, he said, arguing that the United Nations was therefore just as responsible as the contractor.
To a question on the relationship between human rights and development, he said he welcomed the assistance package now proposed by the United Nations, but it did not eliminate the human rights claims made against the Organization. To comments by China’s delegate that the Third Committee was not the appropriate venue for discussing some of the legal aspects of the issue, he responded that he would welcome a conversation in the Sixth Committee, but it had not initiated one. He also pointed out that initiating such a conversation was in the power of China as a Member State, but it had taken no such action.
Finally, he agreed that the cholera incident was indeed a “litmus test” for the Organization. Its reputation had been tarnished not just because of its failure to compensate victims, but because of the “ludicrous and disgraceful failure” of the Secretary-General to acknowledge why cholera had arrived in Haiti. If United Nations wanted to show it was accountable in the face of major violations, the episode in Haiti was a perfect opportunity, he said, urging it to put in place a procedure based on the Convention to address such negligence.
Also participating in the dialogue were representatives of Jamaica, Spain, Switzerland and Iraq, as well as the European Union.
On Safe Drinking Water and Sanitation
LÉO HELLER, Special Rapporteur on the human rights to safe drinking water and sanitation, said development cooperation represented a significant share of total funding for water and sanitation services in developing countries, which was expected to increase in line with the commitments outlined in the 2030 Agenda. If guided by a human rights approach, States and other funders could guarantee that their activities in the sector helped to realize the right to water and sanitation. Discussing his most recent report, he said States and multilateral organizations were obliged to realize the human rights to water and sanitation through development cooperation, while international financial institutions, regional banks and regional development organizations must respect, protect and facilitate those rights.
Turning to the report’s findings, he said the use of a human rights-based approach in the formulation of development cooperation projects and programmes appeared to be more of an exception than a rule. Similarly, only some major multilateral funders had issued policy documents in which the human rights to water and sanitation had been recognized. Moreover, lack of consideration for country ownership was a frequently-raised issue, he said, stressing that particular technological solutions and policies should not be imposed, and that conditionalities in loan and grant concession should never be leveraged in such a way as to deny the sovereignty and ownership of the beneficiary country. Calling for more development cooperation funding, he said States needed strong legal, regulatory and policy frameworks for the water and sanitation sector that aligned with the human rights to those resources. Partner countries must create an enabling environment for development cooperation, observing their human rights obligations.
When the floor was opened, several delegates asked about the implementation of a human rights-based approach, with Slovenia’s representative asking for the Special Rapporteur’s views on how the human rights to water and sanitation could be incorporated in all development activities. Mexico’s and Spain’s representatives inquired about measures that could ensure the participation of all stakeholders.
Mr. HELLER, on how best to incorporate the human rights framework in development efforts, said the right to clean water and sanitation must be considered at every stage of development, particularly in the early stages. He noted that the World Bank had refused to include a human rights framework, arguing that it was a political matter. He disagreed, saying that the human right to clean water and sanitation was a question of access to fundamental services. Under the 2030 Agenda, the human right to water and sanitation was clearly reflected in both the goals and the targets. States must align their international cooperation efforts with the human rights framework because otherwise, the new Agenda would not be properly realized. Regarding the High-Level Panel on Water, he underlined that participatory mechanisms must include all relevant stakeholders in the decision-making.
Also participating in the interactive dialogue were representatives of Brazil, Germany, South Africa, Switzerland, Morocco and Maldives, as well as the European Union.
On Adequate Housing
LEILANI FARHA, Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, introducing the relevant report (document A/71/310), said the divided architecture of international human rights had led to unequal protections for the dignity and rights of the most disadvantaged and marginalized communities. The link between inadequate housing and the right to life was both obvious and disturbing, with an estimated one-third of deaths worldwide linked to poverty and inadequate housing. While homes and infrastructure were increasingly targeted in situations of conflict, housing crises had resulted in evictions and foreclosures.
Noting the absence of outrage that should be provoked at such abhorrent conditions, she said many politicians, judges and everyday people had grown accustomed to stigmatizing — even criminalizing — people for their poverty and lack of adequate housing. Government officials seemed to consider inadequate housing not as a human rights issue that demanded timely rights-based responses and access to justice, but rather as one of many complex programme and policy issues. The right to life, in turn, had been impoverished by its separation from the right to adequate housing. There was no excuse for the failure to address widespread homelessness and inadequate housing as urgent human rights crises, she stressed.
When the floor was opened, the United Kingdom’s representative said she did not recognize the legal link the Special Rapporteur had made between the rights to adequate housing and to life, while Brazil’s delegate also voiced concern about her equation of those two rights. South Africa’s representative supported the Special Rapporteur’s approach, but requested further explanation of how States could ensure that the right to adequate housing was justiciable.
Many delegations also referred to the Habitat III conference, which Ms. FARHA said was an encouraging sign that the urban agenda had not been forgotten. While she had criticized that event for excluding the rights to life and adequate housing from its agenda, it was important to move it forward.
She went on to expand on why it was important to link the right to life with that to adequate housing — a connection around which many delegates had expressed concern. In some countries, she explained, the right to adequate housing was not included in a constitution or other human rights legislation. In such cases, it was difficult for people to claim or have remedy for violations of that right. Most constitutions, however, included provisions on the right to life which, if read less narrowly, could offer that avenue.
On that basis, she emphasized that she did not mean to completely conflate the right to housing and right to life. Separating them, however, did not allow them to benefit from each other. She found it problematic that States were willing to say that some deplorable conditions violated human rights but were justifiable because their causes were due to State action, however, other similar conditions were not justifiable, simply because the cause was inaction.
Responding to a query from the Maldives’ delegate on recommendations for small island developing nations, given their unique context, she referred to her predecessor’s report. Updating on the campaign to end homelessness by 2030, she said she had held a well-attended multi-stakeholder meeting at Habitat III on the need for a global initiative to place adequate housing on the agenda. Consensus had emerged on the need for a “global coming together” of diverse stakeholders to advance the right to adequate housing.
Also speaking in the dialogue were representatives of Germany, Qatar, Morocco and Iraq, as well as the European Union.
On Physical and Mental Health
DAINIUS PŪRAS, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, presented his report (document A/71/304) underscoring that health was central to the Sustainable Development Goals as it was both an outcome of and a path to achieving poverty reduction. The 2030 Agenda suffered from weak accountability requirements, unclear guidance on how to implement the Goals at the national level and a lack of guidance on how to transform the global financial system in a manner that supported an ambitious global strategy. Universal health coverage was crucial to ensuring equity in implementing the right to health, he said, stressing that there were grossly unmet needs for rights-based mental health services, which had traditionally been addressed without the person’s consent.
Civil society actors working on health-related issues needed a safe and enabling environment which included the full exercise of public freedoms, he said, expressing concern about the limited space for human rights defenders focused on health-related rights in many countries. That was particularly the case for those working on women’s rights, on sexual and reproductive health rights, or defending the right to be free from discrimination and violence based on sexual orientation and gender identity. States should ensure that the focus on access to essential medicines and other life-saving interventions did not neglect equally important non-biomedical interventions that promoted mental and physical health and well-being, and that contributed to achieving the right to health and the Sustainable Development Goals.
When the floor was opened, several delegates asked about the situation of vulnerable groups, with Portugal’s representative asking which policy measures Member States should put in place to eliminate discrimination against people facing health issues and Mexico’s representative asking how marginalized communities could be assured of health care access. Morocco’s representative asked whether the Special Rapporteur intended to work with other institutions to ensure complementarity in the field.
Mr. PŪRAS said he was happy there was a common understanding of the importance of health while implementing the Sustainable Development Goals. Universal health coverage was not a simple goal because it sought to address asymmetries and imbalances. All hard-won victories, such as moving toward eliminating HIV/AIDS and reducing infant and child mortality, had been achieved because human rights approaches had been applied. His vision was to contribute, with States and other partners, toward integrating human rights-based approaches in the area of mental health.
He said his report, which would be presented to the Human Rights Council in June, would address the right of everyone to mental health. The international community could shift the paradigm by investing in mental health and having that issue reach parity with physical health. The practice of depriving people of liberty because they had mental health conditions should be eliminated. The best way to reduce violence was to invest in healthy relationships, which was not expensive, he said, stressing the need to overcome beliefs that children could only be disciplined violently. Qualitative data collection could not be forgotten, as statistics could both hide and reveal problems. Good statistics, qualitative research and social science all must be combined.
Also participating in the interactive dialogue were representatives of South Africa, Indonesia, Maldives, Brazil and Palau (also on behalf of Australia, Belgium, Brazil, Canada, Micronesia, and Portugal), as well as of the European Union.