Today we began by waiting out in the halls of the Palais des Nations, because the Sub-Commission was again meeting in private, thrashing out the final compromises on their draft resolutions. Then the voting began about 12 noon, adjourned for lunch, and concluded by 5 p.m.
For a detailed summary of all of the resolutions and decisions adopted by the Sub-Commission this year, please see the voting page of this website.
The Sub-Commission adopted without a vote a resolution which continued the mandate of the working group on transnational corporations. Major operative paragraphs concerning the group’s mandate were deleted from the final text. The cosponsors of the competing draft resolution which would have terminated the working group then withdrew their resolution. So this basically means the working group will continue, but it is a little vague as to what they will actually be doing. There is also some indication that they will wait to see what the Commission says about this issue next Spring before they decide exactly how to proceed.
This voting got off right away with a controversy however. Mr. Alfredsson (expert from Iceland) made it clear that he did not like the reference in the final resolution to the right to development. He didn’t believe in the right to development. He said he wouldn’t block consensus, but he wanted his views put on record.
He said he had a problem with the right to development itself. He didn’t believe there was such a right. He also had a problem with operative paragraph 2 when it talks about the dynamic character of the right to development. “I would submit it is not dynamic at all. The Declaration was adopted in 1986. We’ve had 30 years of non stop debate. We still don’t know what it is. That is not dynamic in my mind. There have been hundreds of meetings, dozens of reports, probably ten’s of millions of pages of talk. This is all talk, no answers. Operative paragraph 2 also says it is an integated right. In my mind it hasn’t been integrated into any activities. I would almost suggest the right has been a divisive one, bringing about more problems than solutions.”
He went on to say “I regret that my request for changes in the wording of this text were not considered by the sponsors. None of what I have now said means that I don’t have support and understanding for much of the sentiments behind the right to development. I support economic, social and cultural rights, when it comes to monitoring and evaluation. I was a supporter of the Social Forum, where there is a chance to bring human rights to positive improvements, including local ownership. I’m in favor of all that. I think all of these ideas can flourish without using the terminology of the right to development. I would hope that the record would reflect my concerns. I trust in a few years the summary records will also reflect mycomments. Based on the entreaties of my colleagues, I will reluctantly live with adoption of this text without a vote, despite these objections.”
Later the Sub-Commission came to draft resolution L.38, the imposition of the death penalty on civilians by military tribunals or by tribunals whose composition includes one or more members of the armed forces. The resolution confirms that it is contrary to customary international law to impose the death penalty on a civilian tried in a military tribunal; calls on States with any such civilian cases to re-try these cases before a competent, independent & impartial tribunal; calls on States to abolish laws permitting such sentences where one or more judges in the tribunal are a member of the armed forces; and calls on States to refuse extradition requests in which there is a risk that a civilian will be tried by a military tribunal
Mr. Casey, the alternate expert from the US, is a well known defender of military tribunals and military justice in conservative commentaries. It was not surprising given this background to see his name card go up when this resolution was introduced.
He said he would like to “note the excellent work of my distinguished colleagues in this area. My disagreements do not arise from their work or their views. I must oppose L.38 however. For the following reasons. Although I agree that the fundamental distinction be preserved between civilians and military personnel, and that civilians should only be tried in extreme circumstances, those circumstances do sometimes occur. To suggest that if one or more judges wear a military uniform, it is not independent and impartial, is not acceptable. I particularly have a problem with operative paragraph 1 of this draft, on customary international law, and operative paragraph 6, which would call on states to breach their treaty commitments by refusing extradition obligations. Since the resolution does not define civilian, I fear it would be misued by unlawful combatants. The death penalty may well be an appropriate punishment in such cases. I ask that the Sub-Commission vote on this matter, and I will vote against.
Several other members joined the debate, but eventually a roll call vote was taken on the draft resolution. The final vote was 20 votes for, 1 vote against (Mr. Casey), and 3 abstentions (Mr. Salama from Egypt, Mr. Cherif from Tunisia and Ms. Wadibia-Anyanwu from Nigeria).
We also held the second NGO Forum meeting today during the lunch period. The meeting was well attended and well received. We handed out copies of the first meeting’s report, discussed the then pending item 2 resolutions before the Sub-Commission that afternoon, and suggested preparatory steps NGOs might take next year in anticipation of a new, improved item 2 structure.
Comments were made to perhaps hold an NGO seminar on the weekend before next year’s session, focused on Item 2 statements and resolutions, in order to formulate some common and joint strategies during next year’s session. A final report of this meeting will be posted on this website in a few days.
The draft resolution on item 2 was, not surprisingly, one of the last adopted by the Sub-Commission this year. It was adopted without a vote, after a lot of discussion, amendments, modifications, impasses, threatened motions to take no action, 10 minute recesses, and, finally, a consensus. The resolution which had surfaced yesterday, L.52, proposed a new “email” working group which would be formed between the sessions, would receive NGO and other interested parties' feedback, and would produce a working paper to be discussed on the first day of next year’s session. An interactive dialogue with NGOs and others would be scheduled “for at least one hour” on the report, and improvements based on that dialogue would be implemented if possible immediately.
It turned out this resolution was too ambitious for some members, but not for the reasons one might suspect. The email working group was thought to be too cumbersome and unworkable for those without reliable email access. There would also be financial implications. Some wanted a sessional working group instead next year (which would make the 4th such group that would be meeting simultaneously during next year’s session, with the session have one Swiss holiday in the middle of the session, making it even shorter than this year’s term). Others wanted more than “at least one hour” in an interactive dialogue with NGOs.
The final resolution, adopted at the end of the day appointed Mrs. Hampson to prepare a working paper, without financial implications, and incorporated many of the same elements of the original draft L.52. However, this text was a draft decision, not a draft resolution, which means it probably won’t need Commission approval and it won’t have budgetary implications.
The final text had the following major elements:
Whew. Quite an achievement. Let’s see if it helps to improve the item 2 debate next year.
Tomorrow will be the closing of the 56th session of the Sub-Commission.