SUB-COMMISSION ADOPTS NORMS ON RESPONSIBILTIES OF TRANSNATIONAL CORPORATIONS WITH REGARD TO HUMAN RIGHTS

Sub-Commission on the Promotion and
Protection of Human Rights
55th session
13 August 2003
Afternoon




Strongly Condemns All Acts, Methods and Practices of Terrorism;
Recommends Establishing Year, Followed by
Decade for World’s Minorities




The Sub-Commission on the Promotion and Protection of Human Rights this afternoon continued adopting resolutions and decisions on the administration of justice, economic, social and cultural rights, violations of human rights in all countries, and prevention of discrimination. Among other actions, it approved the Norms on the responsibilities of transnational corporations; strongly condemned all acts, methods and practices of terrorism; recommended the establishment of a year for the world’s minorities, to be followed by a decade; and considered as unacceptable the increasing pressure that was exerted, both at the multilateral and bilateral levels, to hinder the implementation of the International Criminal Court.
On the responsibilities of transnational corporations and other business enterprises with regard to human rights, the Sub-Commission in a resolution unanimously approved the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights submitted by the Working Group on that topic; and decided to transmit those Norms to the Commission on Human Rights for consideration and adoption.
In a resolution adopted on effects of measures to combat terrorism on the enjoyment of human rights, the Sub-Commission strongly condemned all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whosoever committed. It said that States should ensure that all measures adopted to combat terrorism complied with their obligations under international human rights law, international refugee law and international humanitarian law. Sub-Commission Expert Kalliopi Koufa was appointed as coordinator.
Concerning the rights of minorities, the Sub-Commission in a resolution recommended the establishment of a year for the world’s minorities, to be followed by a decade. It also recommended the establishment of a voluntary fund to facilitate the participation in the Working Group on minorities and its related activities of minority representatives and experts from developing countries and for the organization of other activities relating to the promotion of minorities.
On the International Criminal Court, the Sub-Commission deeply regretted the fact that the immunity allowed to nationals of States parties not parties to the Rome Statute who participated in operations established or authorized by the Security Council had been extended by resolution 1487 (2003). It considered as unacceptable the increasing pressure that was exerted, both at the multilateral and bilateral levels, to hinder the implementation of the International Criminal Court, and recalled that States should observe the principles of the Rome Statute.
On the issue of the transfer of persons with particular reference to the death penalty, the Sub-Commission urged all States not to transfer persons to the jurisdiction of States, which still used the death penalty, unless there was a guarantee that the death penalty would be neither sought nor applied in the particular case, precluding the possibility of transfer to the jurisdiction of the International Criminal Court.
The Sub-Commission also adopted a resolution on the Social Forum, reiterating its decision that the Social Forum should meet every year with the mandate to exchange information on the enjoyment of economic, social and cultural rights and their relationship to the process of globalization.
The Sub-Commission also designed some of its Experts to prepare additional working papers on responsibilities with regard to crimes of sexual violence; non-discrimination as enshrined in article 2, paragraph 2, of the International Covenant on Economic, Social and Cultural Rights; the implementation of existing human rights norms in the context of the fight against extreme poverty; the effects of debt on human rights; the rights of non-citizens; and discrimination based on work and descent.
Resolutions on the prohibition of forced evictions, housing and property restitution, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and prevention of corruption., The Sub-Commission transmits all its resolutions and decisions to the Commission on Human Rights for consideration and adoption.
The Sub-Commission will meet at 10 a.m. on Thursday, 14 August, to take further action on remaining draft resolutions.

Action on Resolutions
In a resolution on the working paper on the difficulties of establishing guilt and/or responsibilities with regard to crimes of sexual violence (E/CN.4/Sub.2/2003/L.31), adopted by consensus, the Sub-Commission took into account the working paper presented by Lalaina Rakotoarisoa and decided to request her to submit an expanded working paper on the difficulties of establishing guilt and/or responsibilities with regard to crimes of sexual violence, including the attitude of the investigating authorities, the gathering of evidence, including forensic evidence, rules of evidence, rules of criminal and civil procedure, the protection of witnesses and survivors before, during and after the proceedings, the special needs of child suspects, witnesses and survivors, rules on the disclosure of the identity of the suspect and survivor and the need to guarantee the rights of the defendant, with a view to identifying best practices to the Sub-Commission at its next session.
By a resolution on the working paper on the criminalization, investigation and prosecution of acts of serious sexual violence (E/CN.4/Sub.2/2003/L.34), adopted without a vote, the Sub-Commission decided to request Francoise Jane Hampson to submit a working paper on the criminalization, investigation and prosecution of acts of serious sexual violence occurring in the context of an armed conflict or committed as part of a widespread or systematic attack directed against any civilian population to the sessional working group on the administration of justice of the Sub-Commission at its fifty-sixth session.
In a resolution on the International Criminal Court (E/CN.4/Sub.2/2003/L.24), the Sub-Commission welcomed the establishment of the International Criminal Court; deeply regretted the fact that the immunity allowed to nationals of States parties not parties to the Rome Statute who participated in operations established or authorized by the United Nations Security Council, had been extended by resolution 1487 (2003). The Sub-Commission also regretted the fact that, in its resolution 1497 (2003) on the conflict in Liberia, the Security Council had decided that current or former officials or personnel from a contributing State which was not a party to the Rome Statute should be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to the multinational force or United Nations stabilization force in Liberia, unless such exclusive jurisdiction had been expressly waived by that contributing State. The Sub-Commission considered as unacceptable the increasing pressure that was exerted, both at the multilateral and bilateral levels, to hinder the implementation of the International Criminal Court, and recalled that States must observe the principles of the Rome Statute.
Through a resolution on the transfer of persons with particular reference to the death penalty (E/CN.4/Sub.2/2003/L.35), adopted by consensus, the Sub-Commission urged all States not to transfer persons to the jurisdiction of States which still used the death penalty, unless there was a guarantee that the death penalty would be neither sought nor applied in the particular case; not to transfer persons to the jurisdiction of States where the person transferred may be held without trial or subject to an unfair trial; to ensure that no person was transferred to the jurisdiction of another State outside the context of extradition; and to ensure that all persons had the effective possibility of challenging any proposed transfer to the jurisdiction of another State before its courts. The Sub-Commission also urged constituent units of federal States, which did not use the death penalty, not to transfer persons to a constituent unit of the same State that still maintained the death penalty. It also reminded States that nothing in the present resolution precluded the possibility of transfer to the jurisdiction of the International Criminal Court.
In a resolution on the study on non-discrimination as enshrined in article 2, paragraph 2, of the International Covenant on Economic, Social and Cultural Rights (E/CN.4/Sub.2/2003/L.25), adopted without a vote, the Sub-Commission requested Sub-Commission Expert Emmanuel Decaux to prepare, without financial implications, a working paper on non-discrimination as enshrined in article 2, paragraph 2, of the International Covenant to be submitted under economic, social and cultural rights.
By the terms of the text of a resolution on the implementation of existing human rights norms and standards in the context of the fight against extreme poverty (E/CN.4/Sub.2/2003/L.38) adopted without a vote, the Sub-Commission requested Antoanella-Iulia Motoc, Emmanuel Decaux, Yozo Yokota, El Hadji Guisse and Jose Bengoa, with the latter as coordinator, to prepare a joint working paper on the need to develop, on the basis of the various relevant instruments, the ongoing work in other forums, the conclusions and recommendations of the Expert Seminar on Human Rights and Extreme Poverty and any other relevant inputs, in particular those received from Governments, guiding principles on the implementation of existing human rights norms and standards in the context of the fight against extreme poverty. The Sub-Commission encouraged the authors to adopt an operational approach to extreme poverty based on the principle of justiciability of rights and the need to give States clear obligations and objectives, assigning all countries collective responsibility for combating extreme poverty all over the world.
Without a vote, the Sub-Commission adopted a resolution on the Social Forum (E/CN.4/Sub.2/2003/L.39), reiterating its decision that the Social Forum shall meet every year with the mandate to exchange information on the enjoyment of economic, social and cultural rights and their relationship to the process of globalization; to monitor situations of poverty and destitution throughout the world, bearing in mind that they amount to complete and permanent denial of human rights; to propose standards and initiatives of a juridical nature, guidelines and other recommendations for consideration by the Commission and other organs of the United Nations system; and to monitor the agreements reached at the major world conferences and the Millennium Summit. The Sub-Commission also recommended the theme for the Social Forum to address and requested Jose Bengoa to prepare a working paper on rural poverty, rural development and the rights of peasants and other rural communities, and other related matters for the next Social Forum and to coordinate with the Secretary-General for preparation of this meeting. The Sub-Commission requested the Secretary-General to adopt the appropriate measures to disseminate information about the Social Forum, invite the relevant individuals and organizations to the Social Forum, prepare two video conferences before the Social Forum, and take all practical measures required for the success of this initiative.
In a resolution, adopted without a vote, on the effects of measures to combat terrorism on the enjoyment of human rights (E/CN.4/Sub.2/2003/L.16), the Sub-Commission strongly condemned all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whosoever committed. The Sub-Commission recalled that States must ensure that all measures adopted to combat terrorism complied with their obligations under international human rights law, international refugee law and international humanitarian law. The Sub-Commission decided, with a view to rationalizing the work of the Sub-Commission on the subject, to re-name the existing sub-item 6c “new priorities, including terrorism” by adding “and counter-terrorism”, to study the compatibility of counter-terrorism measures, both legislation and other activities adopted at the national, regional and international levels, particularly those adopted after 11 September 2001, with international human rights standards, giving particular attention to their impact on the most vulnerable groups, with a view to elaborating guidelines; and decided to appoint Kalliopi Koufa as coordinator, with a mandate to gather the necessary documentation for the effective work of Sub-Commission.
In a resolution on responsibilities of transnational corporations and other business enterprises with regard to human rights (E/CN.4/Sub.2/2003/L.8), adopted unanimously, the Sub-Commission approved the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights submitted by the Working Group on this topic; and decided to transmit these Norms to the Commission on Human Rights for consideration and adoption by the Commission. The Sub-Commission requested the Working Group on the working methods and activities of transnational corporations to study the information submitted by Governments, specialized agencies, non-governmental organizations and other interested parties, and to transmit its comments and recommendations to the appropriate transnational corporations or other business enterprises, Governments and relevant non-governmental organizations or other sources of information. The Sub-Commission also requested the Working Group on indigenous populations to gather the views of indigenous peoples and indigenous organizations and communities as well as other interested parties to supplement the Commentary on the Norms and/or to draft a new set of principles which would include further reference to indigenous concerns and rights with regard to transnational corporations and other business enterprises.
Under a resolution on the prohibition of forced evictions (E/CN.4/Sub.2/2003/L.21), adopted without a vote, the Sub-Commission strongly urged Governments to undertake immediately measures, at all levels, aimed at eliminating the practice of forced evictions by repealing existing plans involving forced evictions as well as any legislation allowing for forced evictions and by adopting and implementing legislation ensuring the right to security of tenure for all residents. The Sub-Commission also recommended that all Governments ensure that any eviction that was otherwise deemed lawful was carried out in a manner which did not violate any of the human rights of those evicted and recommended that the draft resolution be adopted by the Commission on Human Rights.
By a resolution on the working paper on debt (E/CN.4/Sub.2/2003/L.45), adopted by consensus, the Sub-Commission decided to request El Hadji Guisse to prepare a working paper on the effects of debt on human rights, for submission to the Sub-Commission at its next session.
Under a resolution on housing and property restitution (E/CN.4/Sub.2/2003/L.22), approved without a vote, the Sub-Commission urged all States to ensure the free and fair exercise of the right to return to one’s home and place of habitual residence by all refugees and internally displaced persons and to develop effective and expeditious legal, administrative and other procedures to ensure the free and fair exercise of that right, including fair and effective mechanisms designed to resolve outstanding housing and property problems; affirmed that the remedy of compensation should only be used when the remedy of restitution was not possible or when the injured party knowingly and voluntarily accepted compensation in lieu of restitution; and decided to reconsider that issue at its fifty-sixth session.
Adopted by consensus was a resolution on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (E/CN.4/Sub.2/2003/L.37), in which the Sub-Commission urged the Commission on Human Rights at its sixtieth session to mandate the open-ended Working Group of the Commission to proceed with drafting the substantive text of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights; and urged the open-ended Working Group to draft an Optional Protocol to the International Covenant that was comprehensive in scope and that provided that communications may be initiated by individual and collective victims as well as by individuals and groups empowered to initiate complaints on behalf of individual and collective victims; further, the instrument should be conceptualised as both a complaints mechanism and an injury procedure and should preclude State party reservations.
Adopted without a vote was a resolution on prevention of corruption (E/CN.4/Sub.2/2003/L.41) in which the Sub-Commission recommended that the Convention against Corruption should provide for strong measures to criminalize corrupt practices, ensure effective international judicial cooperation, and prevent the transfer of illicit funds and also provide for the seizure, confiscation and repatriation of illicit funds to countries of origin, overcoming obstructions posed by bank secrecy laws in some countries. The Sub-Commission also considered that the process should be expedited with a view to finalizing the Convention against Corruption as soon as possible.
In a resolution on the rights of non-citizens, adopted without a vote, (E/CN.4/Sub.2/2003/L.13), the Sub-Commission decided to transmit the Special Rapporteur’s final report on the rights of non-citizens to the Commission on Human Rights and to Governments, ILO, IOM, UNHCHR, CERD, and other human rights treaty bodies. The Sub-Commission urged States to comply with their obligations under international human rights, labour, refugee and humanitarian law, including very helpful interpretations thereof, relating to non-citizens, including refugees, asylum seekers, stateless persons and trafficked persons; called upon States to take actions, consistent with the principles of freedom of expression and prohibition of advocacy of national, racial or religious hatred, to counter any tendency to target, stigmatize, stereotype, or profile members of particular population groups by officials, the media and society at large; and urged that complaints made against such officials, notably those concerning discriminatory or racist behaviour, be subject to independent and effective scrutiny as well as effective remedy. The Sub-Commission recommended that the Commission recommend the Economic and Social Council to authorize the Sub-Commission to reappoint David Weissbrodt as Special Rapporteur with the task of furthering the study of the right of non-citizens based on the final report of the Special Rapporteur.
By a resolution on publishing the final reports of the Special Rapporteur on the rights of non-citizens (E/CN.4/Sub.2/2003/L.12), adopted without a vote, the Sub-Commission decided to transmit to the Commission a draft decision authorizing the Sub-Commission to appoint one of its members as Special Rapporteur with the task or preparing a comprehensive study of the rights of non-citizens and also to request the Special Rapporteur to compile and update all his reports, addenda and questionnaire replies into a single report, and that the Commission recommend that ECOSOC decide that the updated and consolidated report on the rights of non-citizens must be published in all official languages of the United Nations and must be given the widest possible distribution.
The Sub-Commission, without a vote, adopted a draft decision on a voluntary fund on minority-related activities (E/CN.4/Sub.2/2003/L.27) recommending that the Commission endorse the Sub-Commission’s recommendation that a voluntary fund on minority related activities be established to facilitate the participation in the Working Group on minorities and its related activities of minority representatives and experts from developing countries and for the organization of other activities relating to the implementation of the rights of persons belonging to minorities, with the members of the Working Group acting as a virtual decision-making board. The Sub-Commission recommended that the Commission recommend that the Economic and Social Council approve this request.
Without a vote, the Sub-Commission adopted a resolution on discrimination based on work and descent (E/CN.4/Sub.2/2003/L.28) and called upon States to formulate and implement without delay at the national, regional and international levels new and enhanced policies and plans of action to effectively eliminate discrimination based on work and descent; decided to entrust Asbjorn Eide and Yozo Yokota with the task of preparing, without financial implications, a further working paper on the topic of discrimination based on work and descent in order to examine legal, judicial, administrative and educational measures taken by Governments, to identify additional communities affected by discrimination based on work and descent, and to prepare a draft set of principles and guidelines for all relevant actors, not only national or federal Governments but also local governments as well as private sectors such as corporations, schools and religious institutions.
In a resolution on the rights of minorities (E/CN.4/Sub.2/2003/L.29), adopted without a vote, the Sub-Commission invited the Office of the High Commissioner to consider organizing training workshops at the national level on the implementation of the rights of minorities; recommended the establishment of a year for the world’s minorities, to be followed by a decade, with a view to advancing the implementation of article 9 of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities relating to inter-agency cooperation for the full realization of the rights and principles set forth in the Declaration, within their respective fields of competence, and decided to prepare a draft decision on that matter for the consideration of the Commission. The Sub-Commission recommended the establishment of a voluntary fund to facilitate the participation in the Working Group and its related activities of minority representatives and experts from developing countries and for the organization of other activities relating to the promotion of minorities, and decided to prepare a draft decision to that effect for the consideration of the Commission on Human Rights at its sixtieth session.

Comments on the Resolution on the Transfer of Persons with Particular Reference to the Death Penalty
In a discussion on the resolution on transfers of persons with particular reference to the death penalty (L.35), Leila Zerrougui, Sub-Commission Expert, said that she had a problem with the provisions in the draft that seemed to ask States not to cooperate with States that applied the death penalty. She was against the death penalty but did not believe that it was the Sub-Commission’s role to ask States not to cooperate with one another based on their internal legislation. Christy Ezim Mbonu also expressed her difficulties with this provision.
Comments on the Resolution on Effects of Measures to Combat Terrorism on the Enjoyment of Human Rights
Before its adoption, Sub-Commission Expert Miguel Alfonso Martinez said that he was not sure that there was a need for a coordinator. Kalliopi Koufa, Sub-Commission Expert said that she would not stand in the way of consensus.
Vladimir Kartashkin, Sub-Commission Expert, asked whether it was necessary to have a separate sub-item and if Kalliopi Koufa could include a section on this matter within her existing mandate on human rights and terrorism.
Shiqiu Chen, Sub-Commission Expert, said terrorism already played a part of the Sub-Commission’s consideration of specific human rights issues. Was there a need to create a new sub-item? Christy Ezim Mbonu, Sub-Commission Expert, also said that there was no need for a separate sub-item on this issue.
Francoise Jane Francoise Jane Hampson, Sub-Commission Expert, said the existing sub-item was terrorism, not counter-terrorism. These were not the same thing and counter-terrorism was actually not within Ms. Kalliopi Koufa’s existing mandate. Counter-terrorist measures were creating a huge problem and it was not something that other parts of the United Nations seemed to address as a whole. There was therefore a pressing need for this. A coordinator was needed to gather information and to give consistency to the work over the year.
Abdul Sattar, Sub-Commission Expert, said he supported the views expressed by Ms. Hampson since emphasis had shifted too far in the study on terrorism towards counter-terrorism. Creating a sub-item would redress the imbalance and focus attention separately on terrorism and counter-terrorism. Soli Jehangir Sorabjee, Sub-Commission Expert, said that counter-terrorism measures could sometimes violate human rights and deserved attention. The draft must be adopted.
Paulo Sergio Pinheiro, Sub-Commission Expert, said this issue was crucial and that the Sub-Commission needed to take the time to discuss this issue through the creation of a sub-item.
Emmanuel Decaux, Sub-Commission Expert, suggested that counter-terrorism measures be considered under the existing item on terrorism.

Comments on the Resolution on the Rights of Non-Citizens
Before its adoption, Miguel Alfonso Martinez, Sub-Commission Expert, raised questions on the provision in the resolution on “furthering the study of the rights of non-citizens” and asked what this actually meant. Was it a lifetime appointment or an annual report, he asked. He was not in favour of appointments without concluding dates.
Asbjorn Eide, Sub-Commission Expert, said he understood Mr. Martinez’s point and suggested a period of three years.
Fisseha Yimer, Sub-Commission Expert, said furthering the study did not mean a study ad infinitum. It was not necessary to specify a three year period since all Special Rapporteurs’ mandates were three years.



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