c) New priorities, in particular terrorism.
PAX ROMANA CENTRE UNESCO DE CATALUNYA
Mr(s) Chairperson,
1. Under this agenda item, where the Subcommission is requested to consider new human rights, Pax Romana and the UNESCO Centre of Catalonia strongly urge this body to include a reflection on the right to self-determination, which it has sidelined for almost a quarter of a century, but which we deem necessary to include for the following reasons:
A) Changing Parameters of International Peace and Security
2. Globalisation is challenging traditional notions of state sovereignty, which is being continuously relativized. Contemporary examples around the globe testify that under these impulses the right to self-determination can be exercised through innovative forms of power-sharing, diffusing simplistic fears that its' exercise leads to the creation of new states. Several efforts to reframe self-determination in a broad sense have been proposed. Self-determination in a broad sense can no longer be seen as tantamount to the unilateral right to independence but should be recasted as the right of peoples to negotiate their status in relation to the state/ regional/international frameworks. Since intra-state conflicts is the dominant major type of conflict world-wide, the UN has to address this issue if it wishes to preserve its pivotal role as a guarantor of international peace and security. Moreover the principle of and the right to self-determination is a major factor when analysing the civil, political, economic, social and cultural impact on globalisation on the enjoyment of human rights.
B) The UN deficit in protecting and promoting the human right to self-determination
3. The UN has wrongly assumed that self-determination is not longer an issue since the proclaimed end of the decolonisation. Consequently it has not been a priority of the UN human rights bodies. While the activities of human rights treaty monitoring bodies contribute to the implementation of the human rights goals by analysing reports of States parties, these bodies consider country policy, law and practice, and advise Governments on shortcomings and possible improvements. The treaty bodies through their general comments contribute to the clarification of the legal and policy ramifications of the implementation of the human rights standards thus providing an invaluable input to the concretisation and realization of the goals. Yet no treaty body is monitoring the duties of governments to protect and promote the right to self-determination of peoples under their rule as a part of their contractual obligations under international law The Human Rights Committee is the only positive exception. Since 1999 it has been requesting State Parties to the International Covenant on Civil and Political Rights (ICCPR) to report on the implementation of the right of indigenous peoples to self-determination, as a part of their international legal obligations. This important legal precedent needs to be encouraged and extended.
5. Special mechanisms of the Commission on Human Rights (e.g. special rapporteurs and independent experts), provide advice to Governments, nongovernmental actors, and international organizations on various aspects of the implementation of human rights. While the Commission on Human Rights has several mandates side linked to the question of self-determination, a transversal mandate showing the links with self-determination and other mandates has never been adopted. Nevertheless noteworthy conceptual and political developments in this field are currently taking place within the framework of the UN Working Group on the Draft Declaration of Indigenous Peoples
6. While several UN Subcommission's subsidiary bodies deal with self-determination-related issues, the Working Group on Minorities is ill fit for this task since minorities are not entitled to a collective right to self-determination. An in-depth analysis by the Working Group of Indigenous Peoples would be helpful though necessarily incomplete, as it would only address the right of indigenous peoples to self-determination, and not that of peoples in general. While, as a body of independent experts, the Subcommission is the organ par excellence to study this matter, it abstained over the last 24 (!) years from reviewing and updating the findings by Special Rapporteurs Hector Gross Spiell and Aureliu Cristescu in the light of current developments. However, the UN is increasingly called upon to address this urgent matter.
C) Towards increasing arbitrarity and loss of credibility as a result of UN inaction ?
6. UN peace and security bodies now actively apply new conceptual tools to exercise this right, yet always on an ad-hoc basis, reacting ad posteriori to the emergence of conflict on the ground. Yet no thorough UN system-wide reflection guides the UN policy. This increasing gap leads to arbitrary and discriminatory applications in the access to and enjoyment of the right to self-determination. The ensuing injustice is a time bomb under the UN that fuels rather than prevents or resolves conflicts for putting it's credibility at stake. In this respect it should be observed that the cost of the UN's passiveness in addressing the conflict preventative and resolving potential of this right far outweighs the --politically motivated-- alleged benefits of its immobility that causes thousands of casualties every day.
Conclusion: an urgent need for a working paper reviewing UN human rights mechanisms for the effective protection and promotion of the right to self-determination
7. In conclusion, while it is a main duty of States to realize the right to self-determination of peoples under their rule as part of their international legal obligations, the UN's human rights machinery is urgently called upon to advance towards a human rights approach to exercising the right to self-determination in a balanced way
8. We therefore recommend to the Subcommission on the Promotion and Protection of Human Rights to make a working paper without financial implications that reviews the work of the Subcommission between 1981 and 2002 in the field of promoting and protecting self-determination, including an overview of all existing mechanisms, procedures and programmes within the United Nations that contribute to the promotion and protection of this right.
Self-determination in a broad sense can be defined as "ongoing process of choice for the achievement of human security and fulfilment of human needs with a broad scope of possible outcomes and expressions suited to different specific situations. These can include, but are not limited to, guarantees of cultural security, forms of self-governance and autonomy, economic self-reliance, effective participation at the international level, land rights and the ability to care for the natural environment, spiritual freedom and the various forms that ensure the free expression and protection of collective identity in dignity" UNESCO/ UNESCO Center of Catalonia conference The Implementation of the Right to Self-determination as a contribution to conflict prevention"(Barcelona, 1998), p.19
See e.g. UN doc CCPR/C/79/ Add.105 (April 1999) (Concluding observations related to the Periodic report of Canada) and UN doc CCPR/79/Add.109 (October 1999) (Concluding observations related to the Periodic Report of Norway)
Eg. Those of the Special Rapporteurs on the right to development, on the situation of human rights and fundamental freedoms of indigenous people etc
Hector Gross Spiell. , The Right to Self-Determination. The Implementation of UN Resolutions (E/CN.4/Sub.2/405/ Rev.1) 1979 and Aureliu Cristescu. The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments E/CN.4 / Sub. 2 / 404 / Rev. 1, 1981
See among other Tom Hadden's paper to the UN Working Group on Minorities E/CN.4/Sub.2/AC.5/2003/WP.1, parra 38 (c) : "There is likely to be a need for discussion and guidance on the potentially controversial issues of self-determination or autonomy and their relationship to territorial integrity; the emphasis should be on practical solutions based on consideration of past and present status and the distinction between territorial and other forms of functional or cultural autonomy" .
the UN brokered Peace Agreement between Papua New Guinea and Bougainville provides for a large and doubly entrenched self-rule arrangement with the with a final status referendum to be held in 10-15 years. In his controversal Peace Plan for Self-determination of the Western Sahara UN Special Representative James Baker is also exploring ways forward in a similar direction. At the proposal of the UN, Cyprus of the 21st century was to be remodelled on a confederal basis.