On “Monitoring Mechanism for Human Rights, an Online Dialogue” — Transcript

On 18. October, the Secretary General of Urban Forum, Mag. Bernhard Müller, held an online dialogue with the Austrian lawyer MMag. Florian Horn on the topic of “Monitoring Mechanism for Human Rights, an Online Dialogue”. Following is the transcript of the insightful conversation, partially joined by SINOPRESS, too. Enjoy!

Müller:

Dear friends, welcome to our online dialogue! It’s a pleasure for me to speak with a special guest today on the topic of “Monitoring Mechanism for Human Rights”!

With Mr. Volker Türk being appointed recently as the next United Nations High Commissioner for Human Rights, following approval by the General Assembly, Austria has drawn the world’s attention as a stronghold in the monitoring mechanism for human rights.

According to the Vienna-based European Union Agency for Fundamental Rights (FRA) inaugurated on 1 March 2007, there are over 80 monitoring mechanisms with a human rights remit under the auspices of the United Nations, the OSCE (Organization for Security and Co-operation in Europe), the Council of Europe as well as the European Union. For example, UHRI (Universal Human Rights Index) under the United Nations, HUDOC under the Council of Europe, CJEU/CURIA (Court of Justice of the European Union) under the European Union.

As a State-driven process, furthermore, the UN organization UPR (Universal Periodic Review) is a unique process which provides the opportunity for each UN member State to declare what actions they have taken to improve the human rights situations in their countries, to fulfil their human rights obligations, and to offer proposals for other member States. Currently, no other universal mechanism of this kind exists.

Ladies and gentlemen, let’s give a warm welcome to the well-known Austrian lawyer MMag. Florian Horn as our keynote speaker today!  Mr. Horn is a board member of the Austrian League for Human Rights. In the past, he has given quite a few lectures as well as related comments on the issue of human rights, which are highly regarded. I would like to also mention that he’s very known on social networking platform such as the short message service Twitter where he has already around 4,200 followers.

I’m happy to have the honor of conducting an interview with him now. Dear Florian, my first question to you: Could you give us an overview of the status quo of the monitoring mechanism for human rights worldwide?

Horn:

Yes, sure! Thank you, SINOPRESS, for the invitation, and thank you, Bernhard, for posing the question. It’s a bit of a too big question for a short interview. So, I would just give you an overview about it, and about how we work as Austrian League for Human Rights.

You have already mentioned some of the very important parts of the different monitoring mechanisms for human rights. We have the traditional form of the monitoring mechanism, which centers on the specific human rights instruments and international instruments, mostly a kind of State review. You have an international organization which writes a report about a State and a State must justify its action in relation to this human rights institute. That’s the international sphere, the traditional one. In the national sphere, however, it depends very much on the different countries. But usually, you do have a kind of review in some form of codes where you have — as an individual — the legal recourse. If the fundamental human rights are violated, you usually do have some review mechanism within the State authorities which tries to monitor the situation and to improve.

What is relatively new — in terms of international law — is the UPR process. It’s about 20 years old or so. It’s a relatively new thing about the mechanism. What is really new about it is that it is on a peer-to-peer level, that one State or each State can comment or give comments on the eye-to-eye level to all other sovereign States. So, it is a kind of peer review. With this special edition of reviewing, the so-called UPR — the Universal Periodic Review, which you have already mentioned — it offers the opportunity also for the civil society organizations to weigh in, to assist the State in describing the situation within the State, and also to get involved in the process, in the international process.

You see, there is a very wide variety of different review mechanisms, which cover each and every part. I think we will probably have more time to talk about it later, but the crucial part in my opinion is that in each of these mechanisms, what a State is going to do with the information that it gets. It is important as a first point that the authorities of a State know about the situation, about the opinions of independent NGO organizations, about what the real human rights situation is in a specific State. But then it needs to draw conclusions on what to do with this information. Ideally, there should be steps of improvement. Not everything can be done at the same time, but one needs to make progress in this field.

Müller:

So, do you think UPR has been the big success in this process of development?

Horn:

I don’t think it is a success in itself. But it was a missing piece in this whole instrumentarium,  because in the international sphere, there should  be different varieties of instruments to be able to cover different parts. And the UPR process is kind of a more corporate process. This is a way to get countries involved who might not have had a long tradition with the human rights yet or who are skeptical about the concept of human rights. It is a first step, and it is a step which is a bit more on the diplomatic sphere.

There is also criticism about this process that it might be “too diplomatic” at times. On the other hand, however, it forces States to really get involved. With this process, a State is not only participating as a recipient of the recommendations but is also giving recommendations. In this field, a participating State must think which related problems could arise.

Let me cite an example of the recent UPR as cycle that we had in Austria. We just finished it two years ago. It was 2020/2021 cycle, the last peer review that we had in Austria. For example, China gave a recommendation to Austria to improve the situation of the minorities in Austria. So one could think that it might be a way of trying to express its motivation of improving the situation of the minorities in its own homeland, too.

By giving a recommendation, therefore, one is also showing respect and maybe a willingness to improve its own situation. If this improvement happens, then it’s on a different level. That’s why it is important to also have independent reviews by human rights organizations. But my point with the UPR is that it is a very specific type of reviewing procedure where everyone is on an eye-to-eye level and can really open up to the concept of human rights.

 

Müller:

Thank you very much for the very important point made so far! I must admit, I didn’t know the UPR procedure so well.

The complexity of the world’s geo-political landscape is at a new peak nowadays. Covering political, economic, military, as well as energy, security and environmental issues, has the concept of human rights gained new perspectives/horizon?

Horn:

Yes. I think the main point about universal human rights is that they’re always important. They’re important when one is in good economic situation, stable economic and societal situation, but also when one is in a crisis. I think in a crisis or in different crises like the ones we have at the moment, it becomes even more apparent what importance the fundamental human rights have. Or where there is a lack of such rights. If you think about it from an individual perspective, you’ll see that human rights and fundamental rights are not an extra, not something that one attains when in paradise. It’s something that one should HAVE no matter what.  If in a crisis, you should see that at least your fundamental rights are observed. That can be complex. We see this in all parts of the globe. If you are trying to combat new threats, you’re always in a discussion about if you are infringing on pre-existing rights, sacrificing rights to a new battle. I think that is the decisive point. We need to make it clear which part of the individual rights or which human rights are so fundamental that they cannot be abolished, no matter what.

For most of the of human Rights, it is so important not to forget that the deciding measures should be taken for human rights purposes. You’ll have to look at proportionality, to look at how much you infringe one right to safeguard another right. This is an exercise which enables the legislator to focus on the welfare of a society. Take, for example, the big Covid-19 crisis that we have been having, it is also an expression in a fight on fundamental rights — Because as a person, you have the right of safety of your own physical appearance. You HAVE the right to see that the State IS providing health care and related protection. But at the same time, you also have the right to freedom of movement, of education, of whatever indicated by these measures. So, what is required of a government? Take the example of Austria, the government must find a solution that really fits and does not infringe the one right more than another. Besides, it should look at the effectiveness.

In my eyes, therefore, human rights are a method to focus on what is essential for human life. Looking at the general formula for human rights, one can see that human rights are those rights rooted in the dignity of the human being, which are inalienable, which cannot be removed. It is the core of what makes us human.

Müller:

Do you think the influence of global crisis on human rights is growing up?

Horn:

Yes! I think we are now in a phase where the crisis reactions are more in the foreground. I mean, we have had such times. Remember the war against terror? It has in itself its own dynamic. But I don’t think that this is the way to go with international politics or with human rights politics, because everything which becomes too extreme can be a threat to this general notion rooted in the dignity of the single person, as a single person in relation to its peers. It is not such a general concept but one which really forces politics to take care of the citizens — including those not as citizens, too, for example, asylum seekers — to see that their needs are met at least at a level which upholds the international order in a way.

Müller:

In this procedure, what can be the function of NGOs based in Austria? For example, what can be the function of the Austrian League for Human Rights in the related monitoring mechanism? Does it have any influence at the international level?

Horn:

Yes. I think I already mentioned in the beginning that we are involved in the UPR process.  We are doing the review coordinating with the Austrian government. I would say we cover the biggest part of the Austrian civil society in this Universal Periodic Review. This means we are drafting our own joint report to the office of the High Commissioner of the United Nations. We are involved in the State report of the Austrian government in the same procedure. As the Austrian League for Human Rights, we are also included in the International Federation for Human Rights, which is seated in France, and which is an international organization. We are also permanently accredited with the United Nations.

I see it as very important that also national organizations trying to be included in the international instruments. In so far, I also see the League in Austria be in a position to maybe provide this service to other human rights organizations which are more nationally based.

Müller:

Do you agree that the roles of NGOs in our discussed topics are somehow changing?

Horn:

Hmm, I think there is constant change and that’s the good part about it, because constant change and flexibility are the main ingredients which really gives society stability and permanence. In Austria at least, there are many different NGOs. There’s always some kind of movement to find one’s role in this big sphere of NGOs. By this, one improves the quality in a way.

There are organizations specialized in their very specific field and can give input in these fields. There are also organizations which are more of generalists like us as the Austrian League for Human Rights, which are looking more at the big picture, getting involved in the legislative process and giving recommendations.  Besides, there are organizations more based on action, maybe supporting individuals in front of court or in other campaigns.

The role of NGOs has always been there. What we see now is that we have more diversity, which is a good thing. It is not a competition situation, but an improvement by dividing the attention to more minds.

Müller:

Is there a discrepancy between the theoretical possibilities and the realistic predicament in the monitoring mechanism for human rights? For Europe, issues like refugees, illegal immigrant or terror attacks are still under imminent crisis.

 

Horn:

If I understand the question correctly, yes, it IS difficult. You see also public pressure in some parts of Europe which partially is against immigration. Right now, we have a crisis in Austria, too.  The central government in Austria was not prepared for the new arrivals of refugees and has to put up tents for them. That’s kind of ridiculous in a modern industrial nation to have to put up tents for refugees who you knew would be coming for months now.

But let me make one step further in this topic. I think the refugee crisis also shows what happens if human rights understood as individual rights are not followed through.  The people are coming to Europe not because they wake up one day and say oh we want to go to Europe. They are coming to Europe because they are fearing for the personal security in the countries that they are from. So, it has to do with lack of order, of human rights, of all those personal rights and personal security in these countries. It would be the wrong step to counter this movement by removing personal freedom and liberties in Europe. Because the reason why people are coming is that it is quite good in Europe. We have a good life. We have good welfare. And the reason why we have such a good life and good welfare is due to — for the biggest part — a very strong understanding of these fundamental rights which are also in the social components, pushing the State forward to improve life for its citizens. So, I think we should take the refugee crisis as a sign of European strength in a way, a sign of European welfare that we are so attractive. The political issue and also the problem for organizations in promoting human rights are because we have populists in politics, who try to exploit the situation, to play one part of the population not so well off against other people. That is not a good situation.

What would be a human rights view on this issue is that for whatever reason the person is coming, we have a job at the first instance to make sure that there is at least a controlled and good fulfillment of their basic needs. That’s part of the basic human rights. We should also make sure that we have a real legal process for them to go on with any applications for asylum.

One of the big problems we have in Austria at the moment is that our assignment procedure is extremely complicated. It is on the legal standing so complicated that even Austrian lawyers don’t understand what is going on these proceedings. And you cannot expect a person who is trying to seek help to understand this, or as some people say, should understand in advance if they have a ground for asylum in Austria or not.

So, I think that would be a human rights approach to say that we need a more understandable and fairer procedure. And from this standpoint, it is no problem to say okay we have had a fair procedure. And the result is that there is no asylum.  But it is a problem if you let people live in Austria for 10 or 15 years and then decide they need to be removed. That’s not fair anymore. That’s not in accordance with the basic human rights. There have been different cases in Austria where the children of asylum seekers grew up in Austria. They don’t know anything else but Austria, having lived their whole life in Austria. Then the central government tries to remove them forcibly or even did so in some cases. That is certainly not in accordance with human rights. Those examples give one a feeling that most of what we are talking here are put in categories and legal terminology. But it’s actually just basic human understanding. Any human being with some goodwill would understand the problem if it were the case. So it’s not a willful but a factual test of how strong we are and how good we are at making efficient solutions, which at the same time do not infringe human rights.

Müller:

Very well said! It could be a test for our society. You spoke about a further step. But let me please talk about the first step. My question is, does that mean we need to strengthen the development policy?

Horn:

Yes, it does.

I think that is a big point. Maybe not only as development policy, which has a kind of paternalistic feel to it. We also need to improve on fair economic cooperation, and there are steps taken in this direction. That’s also part of the initiatives of many Austrian NGOs, under the heading of “Lieferkettengesetz”, in relation to the sourcing by the European corporations. We need to take into regard the human rights and the social situations in the countries where they’re sourcing from.

So, I think we are still partially in a situation where we do not look too closely on the social and human rights situation in other countries outside of Europe for economic gain. It’s a double-edged sword. Because if you are a foreign government, you don’t want somebody else to interfere and tell you what you’re doing is wrong, on the human rights front. At the same time, you want to do business. So, it can be a very difficult situation.

I think it would be an ideal situation to build up more cooperative approach and to try to move on forward consistently, not hitting for the big solution for problems. I don’t think a big solution exists. I think it would be good if this initiative could be at the European Union level, concerning corporate governance about human rights, forcing the European companies to take regard of human rights also in the sourcing process. That’s the most powerful way that we have, and the most direct way, because much of what we have in the international exchange at the moment is economic based, regardless of what country it is.

If we normalize the economic relations, it would be a big step forward. It might hurt in the beginning, but the result should be good. The trade partners could force the regime to take more regard of the rights of the citizens, at the same time, to get better and fairer remuneration for their goods and services. Also about the migration situation that we have on the ground of Europe — The most pressure of migration comes from the African continent, Central Asia and Middle East.

Müller:

We must not forget climate change as a factor for expulsion, either.

Horn:

Yes, that’s true.

Müller:

Last but not least, should the meaning of human rights be considered in the context of different cultural background and traditional interpretation, too?

Horn:

Yes, I think so. It was SO from the beginning. Let’s go back to the beginning of this movement of human rights which basically started after the Second World War. We were back then in a situation where the world had just experienced   blatant disregard of the rights of the individuals. Millions and millions died in the senseless war. The atrocities were committed. So what was one of the many steps that were taken to improve international relations? It was the Universal Declaration of Human Rights, which was a joint product of many, many, many nationals, of different nations. It was in itself a discussion, which included cultural perspectives at that time. I mean, it was 60 or 70 years ago. So, a long time passed. I think cultures change in a way, too. As I described earlier, much of the world is in constant movement. We’ll have to consider what is new, new expressions of the same thing. And we’ll have to consider how they fit into the traditional culture. I have a deep feeling that many of these fundamental human rights CAN be agreed on by any country and any governmental system — if you talk about torture, about the fundamental personal freedoms, about the right of not being discriminated on the basis of race or gender.

I think most of these can be found in any culture in the world. The question is only how they are expressed in these cultures. I have a feeling that much of these misunderstandings is avoidable. There is the view which says human rights are not universal. But how does this view come into existence? It’s mostly done in a fashion that you pick out one extreme human right that you don’t like and say that’s totally different with us. But if you look deeper in the issue, mostly it is not very different. You have just a different expression. If you have the right to have a family, it might look different in different nations how a family is defined, if it is a wider range of persons, or if it is a very core family as it is in Europe. Mostly, the importance in the cultural aspects of human rights is to be open to different cultures, to understand HOW things are seen. And how this understanding of fundamental and universal human rights fits into this culture and how this culture can enrich our view of human rights.

I’m coming back to where I started: The document or the Universal Declaration of Human Rights would have looked totally different if it had been written by one cultural group. They were fighting about different words in this declaration to try to make it more open and include more. There are certain aspects where you can discuss if this is still adequate today, or if we can have more. There are different instruments which in parts have different focuses. For example, in the European Union, we have the Charter of Fundamental Rights of the European Union, which has a strong emphasis on — typically — the social human rights, the right to work and the right to health care, which were 70 years ago not such a big thing. That’s what is fascinating. All the thoughts that we have today which are crucial for any society. If you go back into history, they might not have been called human rights. But you would find instances very similar, or the same as what we have today. And they were addressed in a similar method.

I think it is enriching for us to compare different cultural approaches to the same questions. The main important thing that I say from the perspective of a human rights NGO’s point of view — if I’m talking with this hat on — is that some of these human rights cannot be discussed in their existence. If somebody says in our culture, we need to torture people, I think it wouldn’t work. And I don’t think this would happen in a developed country, anyway.

SINOPRESS:

May I raise a question? I’d like to extend the topic based on the question raised by Mr. Müller, about the human rights versus different cultures or mentalities. I think Mr. Horn made very important points about this by pointing out that the human rights campaign started mainly after World War II, when the whole world began to pay attention to what human rights should be, like the fundamental needs written in the Universal Declaration of Human Rights by the UN, or the document at the EU level. You might have noticed that recently, the Western world is also re-thinking of their history of colonization, what they did to the aboriginals in different regions. Did the colonizers ever think of the human rights of those in their colonized regions? Their basic needs, their dignity as human beings?

Talking about the fundamental rights for human beings, there is yet another perspective to be taken into consideration: Some societies put more values to collectivity, some more to individuality. Some societies think human rights should be for the good of stabilizing the society. Some, however, think the personal benefits and individual freedom are of utmost importance. How to define human rights at this point?

I could also extend my question to the neutrality of Austrian government, discussing about how its neutrality should work concerning the war in Ukraine. What should Austria do? What should Austria not do? What is correct? What is wrong? Furthermore, what is the right of the refugees? Should a government put priority on protecting the benefits of its own citizens? As a citizen, one’s basic rights as human beings should be protected by his/her government, right? But what if it conflicts with the basic rights of the refugees? To make related decisions by a neutral government like the Austrian government seems very much to be a difficult one. It’s difficult from the political point of view to comply with what everyone wants.

Horn:

Yes, it is very difficult. But it’s good that it’s difficult because that shows how important it is, in fact.

Let me take on this notion of communality, of more collectivity that you described. I’d say that the fundamental rights as a whole can be grouped differently. So, there are some fundamental rights which are clearly put into the individuals, like the right not to be tortured is a very individual one, right? It doesn’t help you if it is a right to assign to somebody else, because it is a right that YOU are not harmed. But there are other rights which can be thought collectively. Talking about health care, it is not in a personal sense but in a more general- scale sense that there should be a good healthcare system, which can only be understood collectively. Also talking about the right that there should not be racism or discrimination against a culturally specific group, that’s automatically a collective notion because a person is not addressed in this instance as an individual, but as a part of a group, a part of one’s cultural peers.

So, I think the notion of collectivity is not foreign to the fundamental rights and human rights. In the UN’s Universal Declaration, some of the articles show this collectivity. In the modern discussion of human rights, you have first of all those rights addressed to yourself, and then those with the surroundings, the culture and the embedding of the society with it. Those rights are in themselves collective. I think we have a long tradition, for example, for the right of the employees to organize themselves, which is a right of association. It is a right to be collective in a union and in representation of their rights as a societal class, in a way.

Nowadays, there is also new development. Some scholars are assigning rights to bigger entities, like the right of the environment, the right of Mother Earth. That’s a very new topic. So that’s something in development and we are seeing if it helps us or doesn’t help us in a way. But it’s a new salt.

So, you have the very individual rights. You have the group rights, the collective rights. And you have the all-encompassing rights like environment and climate or whatever. I think the human rights claim is so flexible that it can include all this. Even if you’re very purist and saying you mean only the rights for an individual person, it’s always the individual person within his/her social group. One is embedded in his/her culture. It is one’s need to live his/her culture. It has to be thought through when advocating for one’s right. But I think it is also clear and self-regulating in a way, because if one as an individual does not have the need for whatever on mind at the moment, one will not try to get that very right. If one has the true need of an improvement of one’s situation, I think it is there. And then it is the task of the responsible government to fulfill these needs of their citizens. Not only all citizens but also others for whom they should be responsible, because today there are people who maybe don’t have a statehood due to their failing States. There are people who have been driven away from their home countries like those refugees who are not citizens of the country they escaped to. But I think it would not be in accordance with what we are able to do, how strong we are, and what we are obliged to do not to let those people die. So, it is kind of weighing of solidarity, and as Bernhard put it earlier, an improvement in the States worldwide to lessen the big discrepancies.  We need to make difficult decisions at times. It shows strength to make difficult decisions. It is quite easy to make easy decisions.

SINOPRESS:

The concept of human rights do have the connotation of development. You mentioned a new phenomenon with thinking by certain experts: Talking about human rights in relationship with the rights of environment, like tree rights or animal rights. Those rights are all linked with human rights, however. So obviously, human rights IS a concept in development.

You mentioned a key word “torture”, too. But what does it mean by “torture” here? Do you mean physical torture or mental torture? It is complicated when we talk about torture.

Horn:

Yeah, you are right.

SINOPRESS:

One might as well think that “I’m not tortured if I’m not beaten”. With just some words hurting me or something indirectly hurting my benefits or fundamental human rights, it is not torture.

Horn:

Well, even in the older texts, I think it has been pretty clear already what torture is, and that it is not only physical torture. It is regulated in all of these instruments. That’s why it’s so clear that there is almost a consensus on this internationally. Defined as torture and inhumane, or degrading treatment, it has this mental side to it. So, the idea here is that you as the single helpless person and are in front of an authority, you can be coerced by normal needs, but you may not be abused by physical or mental harm. That’s the situation, I think. I don’t know exactly, but I wouldn’t think that there are many societies worldwide that would see this as a permissible act. It’s in all ideologies, even in all religions that we have this trust hold where we say that senseless harm to humans is bad, very bad.

SINOPRESS:

Senseless. Well-said!

Müller:

If you allow, I have a personal question for you, Florian!

Horn:

Please.

Müller:

What’s your personal wish — in the topic of human rights — for your engagement in the Austrian League for Human Rights?

Horn:

Hmm, my personal wish would be that the follow-up process in the UPR process would be better, so that we have — no matter what the State does, also in Austria — a better understanding how important human rights are, away from mere superficial view of this, to an understanding and a commitment to it. That would be something that would be very important for the Austrian League for Human Rights and for all Austrian NGOs that you don’t have only nice and well-spoken words in Sunday speeches but that you have actual work done, making hard decisions if necessary.

Müller:

Thank you very much for this interesting and expertise dialogue, Florian! I think you found it very insightful, too, Helena! Florian is a real expert for the topic. It was interesting to listen and to interact. Of course, we all know that this topic is not that easy. But it’s easy to have a dialogue and to know that this topic is indeed very important.

Thank you, Florian and Helena! It was my pleasure to be the moderator for today’s talk. It is one of Urban Forum’s serial online events with SINOPRESS. As usual, the transcript of this event will be published. Thank you again and have a nice day!

 —   End of transcript   —

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