Human Rights Council Holds Separate Interactive Dialogues with the Special Rapporteur on the Independence of Judges and Lawyers and with the Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises

AFTERNOON

28 June 2021

The Human Rights Council this afternoon held separate interactive dialogues with the Special Rapporteur on the independence of judges and lawyers, and with the Working Group on the issue of human rights and transnational corporations and other business enterprises.

Diego García-Sayán, Special Rapporteur on the independence of judges and lawyers, noted that numerous and courageous people who made up the justice systems, or were linked to them, had paid, many times with their own lives, to continue to carry out their functions with dedication during the COVID-19 pandemic. Among his recommendations, he stressed that justice should be considered an essential public service, and its members, essential personnel in pandemic contexts, including vaccination processes. Also, countries must adopt urgent and sustained measures to close the digital divide that affected access to justice and generated exclusion. The technological means for the provision of justice services must ensure respect for due process, including aspects such as privacy, confidentiality and security of the information transmitted.

Speakers recalled that notwithstanding the current pandemic, international human rights law remained in force. Accordingly, everyone must have access to legal advice and fair and effective judicial procedures. Several speakers underlined that digital judicial services, including virtual court proceedings, could foster transparency, as well as continuity of legal services and access to justice in the context of the pandemic. They stressed, however, that the digital divide must be addressed, and asked the Special Rapporteur to comment on this matter.

Speaking were the European Union, Cameroon on behalf of a Group of African States, Peru on behalf of group of countries, Libya, Lithuania, France, Australia, Indonesia, Israel, Cuba, Bahrain, Fiji, Iraq, Armenia, China, India, Maldives, Morocco, Algeria, Venezuela, United States, Egypt, Jordan, Nepal, Botswana, Namibia, Malaysia, Azerbaijan, Pakistan, El Salvador, Afghanistan, Russian Federation, International Development Law Organization, Poland, Tunisia, Peru, Albania, Malawi, Democratic Republic of the Congo, Saudi Arabia, Bolivia, Cameroon, Kazakhstan, Germany, Kyrgyzstan, Philippines, Iran, and Chad.

The following civil society organizations also took the floor: Law Council of Australia, Lawyers' Rights Watch Canada, Peace Brigades International, Dominicans for Justice and Peace - Order of Preachers, International Bar Association, Avocats sans Frontières Québec, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, Asociación Civil, International Commission of Jurists, Réseau International des Droits Humains (RIDH), and Asian Legal Resource Centre.

The Council then began the interactive dialogue with the Working Group on the issue of human rights and transnational corporations and other business enterprises.

Dante Pesce, Chair of the Working Group, said that for the past year, the Working Group had undertaken a project called UNGPs 10+ to take stock of the first 10 years of implementation of the Guiding Principles on Business and Human Rights. The "governance gaps" that had created the need to develop the Guiding Principles still allowed too many instances of business-related human rights abuses across all sectors and regions. Lack of access to remedy for rights-holders remained the most glaring gap and a threat to meaningful progress over the next decade. Above all, the challenge of policy coherence in both governance and business practice was still a key obstacle for more robust progress. Looking ahead, the mandatory human rights due diligence wave and the increasing focus on effective regulation offered opportunities and drivers.

In the ensuing discussion, speakers welcomed the progress achieved over the past 10 years, and said the Guiding Principles were a fine tool to achieve the transition to sustainable economic models. Some noted that over 50 States had adopted or were developing national action plans and many had adopted laws to strengthen accountability, including on due diligence, supply chain transparency, and environmental protection. In addition to government-business collaboration, business-to-business partnerships, notably in the global supply chain, were needed to recover from the COVID-19 pandemic.

Speaking were Mexico on behalf of a group of countries, Denmark on behalf of a group of countries, United States on behalf of a group of countries, Libya, France, Indonesia, Switzerland, Ecuador, Japan, China, India, Venezuela, Egypt, and Argentina.

Israel, Ethiopia, Brazil, Eritrea, Japan, Azerbaijan, Colombia, China, Iran, Republic of Korea, and Armenia took the floor in right of reply.

The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council’s forty-seventh regular session can be found here.

The Council will next meet on Tuesday, 29 June at 10 a.m. to continue the interactive dialogue with the Special Rapporteur on violence against women followed by an interactive dialogue with the Special Rapporteur on trafficking in persons, especially women and children. The Council will continue the interactive dialogue with the Working Group on the issue of human rights and transnational corporations and other business enterprises at 3 p.m. tomorrow.

Interactive Dialogue with the Special Rapporteur on the Independence of Judges and Lawyers

The Council has before it the report of the Special Rapporteur on the independence of judges and lawyers (A/HRC/47/35) on the coronavirus disease (COVID-19) pandemic: impact and challenges for independent justice

Presentation of the Report

DIEGO GARCÍA-SAYÁN, Special Rapporteur on the independence of judges and lawyers, noted that numerous and courageous people who made up the justice systems, or were linked to them, had paid, many times with their own lives, to continue to carry out their functions with dedication during the COVID-19 pandemic. His report had reached five conclusions: (1) the measures of confinement, isolation and social distancing had affected the work of the courts and had caused delays in the procedures; (2) the closure of courts, the extension of provisional arrests, the lack of execution of court orders or the suspension of trials had had a negative impact on fundamental rights; (3) the increase in gender violence against women, children and girls within the framework of quarantines, confinements and other restrictive measures was particularly alarming; (4) the population congestion in prisons affected human rights in all circumstances, but it was particularly serious in a pandemic context; (5) and the use of virtual media and teleworking for a series of legal proceedings had been a positive response, but there were questions about the guarantees of access to justice, due process and judicial guarantees.

The Special Rapporteur focused on six recommendations among others contained in the report. First, justice should be considered an essential public service, and its members, essential personnel in pandemic contexts, including vaccination processes. In this context, the State must assign additional budgetary resources to the justice system. Second, States must adopt the necessary measures to prioritise attention to criminal situations that had increased exponentially during the pandemic. Third, procedural discharge plans necessary for a rationalisation of the justice services must be transparent and respect the guaranteeing standards of judicial independence and human rights. Fourth, countries must adopt urgent and sustained measures to close the digital divide that affected access to justice and generated exclusion. Fifth, the technological means for the provision of justice services must ensure respect for due process, including aspects such as privacy, confidentiality and security of the information transmitted. Sixth, effective measures must be taken so that preventive detentions were applied extraordinarily for very serious crimes and for certain considerations.

Discussion

Speakers recalled that notwithstanding the current pandemic, international human rights law remained in force. Accordingly, everyone must have access to legal advice and fair and effective judicial procedures. Several speakers underlined that digital judicial services, including virtual court proceedings, could foster transparency, as well as continuity of legal services and access to justice in the context of the pandemic. They stressed, however, that the digital divide must be addressed, and asked the Special Rapporteur to comment on this matter. Speakers noted that the independence of justice was a cornerstone of the rule of law, and sought his advice on the best ways to ensure access to justice for victims of gender-based violence, which had increased because of the pandemic. In addition to greater financial resources, a better management of human resources and organisational processes was required to ensure judicial systems’ resilience and adaptation.

Interim Remarks

DIEGO GARCÍA-SAYÁN, Special Rapporteur on the independence of judges and lawyers, encouraged States to provide more information on the matters for which they had criticised his sources. The closing of the digital gap and access to information technology must be on the agenda to ensure access to justice, and this primarily affected the global south. Closing the digital divide must be a key concern for the United Nations in general. There was a need to provide resources to the global south to make sure that the closing of the digital divide could be ensured. Reiterating that the delivery of justice should be seen as a public good, he said specialised mechanisms were required to ensure an adequate and decentralised response to gender-based violence.

Discussion

Speakers noted that it was important to conduct awareness-raising campaigns to ensure that all citizens knew how to access justice and legal advice during the pandemic. They urged the Special Rapporteur to consider the resources that countries had at their disposal, which were in some cases limited. Speakers highlighted the various practices adopted by States to decrease prison populations and improve the conditions of prisoners as a result of the pandemic, while also ensuring that their access to legal advice was not inhibited. The use of sanctions against lawyers, their families and related entities concerned speakers, who noted that this practice threatened their work globally, and must not be applied arbitrarily. Speakers also expressed concern at the use of anti-terrorism and security laws by some States to harass lawyers, particularly those who worked on human rights issues. Procedural obstacles, lack of impartiality of judges and use of malicious litigation were all used to wear down human rights defenders, their lawyers and families. Lawyers must never be required to obtain any additional permits to operate - a regular occurrence during the pandemic - other than their ordinary credentials to practice law.

Concluding Remarks

DIEGO GARCÍA-SAYÁN, Special Rapporteur on the independence of judges and lawyers, said he was pleased to see that many speakers considered the administration of justice to be a public good. Now, with the continuation of the pandemic, and especially in the context of vaccinations in the global south, it would be important to see whether the administration of justice was considered a public good in terms of organizing priorities for vaccines. Emphasising that human rights must be safeguarded as a matter of priority in situations of emergency, he said corruption worked against human rights and was on the rise in a number of countries, stressing the corruption risks associated with the mobilisation and transfer of resources to respond to the pandemic. The importance of upholding the independence of the judiciary and the related standards had been reiterated on several occasions by the Council.

Interactive Dialogue with the Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises

The Council has before it the report of the Working Group on the issue of human rights and transnational corporations and other business enterprises (A/HRC/47/39) on Guiding Principles on Business and Human Rights at 10: taking stock of the first decade

Presentation of the Report

DANTE PESCE, Chair of the Working Group on the issue of human rights and transnational corporations and other business enterprises, said that for the past year, the Working Group had undertaken a project called UNGPs 10+ to take stock of the first 10 years of implementation of the Guiding Principles on Business and Human Rights, which had clearly articulated the different but complementary roles of States and business in preventing and addressing business-related human rights impacts and provided a common platform for action that did not exist before 2011. In particular, the concept of corporate human rights due diligence, certainly the most notable normative innovation, had seen broad institutional uptake. It had paved the way for regulatory developments, with increasing backing from business and investors.

However, the "governance gaps" that had created the need to develop the Guiding Principles still allowed too many instances of business-related human rights abuses across all sectors and regions. Lack of access to remedy for rights-holders remained the most glaring gap and a threat to meaningful progress over the next decade. Above all, the challenge of policy coherence in both governance and business practice was still a key obstacle for more robust progress. Looking ahead, the mandatory human rights due diligence wave and the increasing focus on effective regulation offered opportunities and drivers. But as witnessed over several decades, laws alone were not enough. To make more effective progress, States would also need to use the wider range of policy tools - a "smart mix" - to incentivise responsible business and due diligence. Later this year, the Working Group would publish a roadmap for the next decade, resting on the common platform provided by the Guiding Principles and the broad, growing movement converging around them.

Discussion

Speakers, welcoming the progress achieved over the past 10 years, said the Guiding Principles on Business and Human Rights were a fine tool to achieve the transition to sustainable economic models. Some noted that over 50 States had adopted or were developing national action plans and many had adopted laws to strengthen accountability, including on due diligence, supply chain transparency, and environmental protection. In addition to government-business collaboration, business-to-business partnerships, notably in the global supply chain, were needed to recover from the COVID-19 pandemic. Other speakers stressed that the untapped potential for broader and deeper implementation of the Guidelines was vast. Effective accountability mechanisms were required, speakers said. It was no longer sufficient to rely on non-binding instruments; more than soft law was required to address corporate abuses and violations. They drew attention to the issue of business being conducted illegally by some corporations in countries affected by conflict. Some speakers said there were States that were using human rights as a pretext to smear foreign companies while securing their own economic interests.

Link: https://www.ungeneva.org/fr/news-media/meeting-summary/2021/06/afternoon-human-rights-council-holds-separate-interactive