Human Rights advocacy
Create Darfur recovery fund
United Nations Security Council members should act decisively to protect civilians in Darfur by establishing a mandatory Darfur Recovery Fund with Sudanese oil revenues, Human Rights Watch said today. In a letter to Security Council members, Human Rights Watch also called for targeted sanctions on top Sudanese leaders. The Sudanese government continues to reject the full deployment of a proposed African Union-United Nations protection force to Darfur, and to resist all efforts to improve civilian protection for some 2.5 million displaced Darfurians who continue to be attacked, raped, and killed. “Given Sudan's blatant failure to protect civilians in Darfur, the Security Council should designate Sudanese oil revenues to create a fund to assist those suffering most from Khartoum's abusive policies,” said Peter Takirambudde, Africa director at Human Rights Watch. “Such limits on Sudan's oil revenues have the best chance of stopping the violence and compelling Khartoum to accept the full African Union-United Nations force.” Theycalled for the Security Council to create a mandatory Darfur Recovery Fund into which all revenues from Sudanese oil exports would be paid. The fund would be a new measure, under Chapter VII of the United Nations Charter. It would permit both the Sudanese government and private firms to continue to export oil and Sudan's existing customers could continue to buy it but all proceeds from such exports and all royalties and similar payments owed to the Sudanese government would be paid directly to the fund. The proposed fund would be administered by an independent UN-designated financial institution that would serve as an escrow agent.
The fund would distribute the proceeds to the government of South Sudan in accordance with the Comprehensive Peace Agreement of January 9, 2005; to the oil exporting firms for oil production and delivery costs; and to the Sudanese government for those substantiated expenditures on social services that are currently paid for with oil export revenues. The balance of the proceeds would go to victim compensation and recovery projects in Sudan, with the goals of facilitating the safe return of displaced persons, assistance in reconstructing homes, and replanting fields and other humanitarian needs in Darfur and elsewhere in Sudan.
To ensure transparency, all Darfur Recovery Fund receipts and disbursements would be subject to regular independent audits, as would the assistance and recovery projects carried out with fund assistance, as recommended by the US General Accounting Office report for future UN-authorized trust fund programs. Domestic oil sales (about 15 percent of Sudan's production) would not be affected by or subject to the fund. Human Rights Watch said that the Security Council should also specify the actions required by the government of Sudan for rescinding the mandatory fund procedure. These conditions should include:
Consent by the Sudanese government to the full deployment of an effective and robust African Union-United Nations protection force in Darfur with a mandate to take all necessary measures to protect civilians; Ending of further financial and logistical support to the government-backed “Janjaweed” militias and cooperation with African Union and the United Nations on a genuine plan for their disarmament; An immediate end to attacks on civilians by Sudanese armed forces and government-backed militias; Cooperation with the International Criminal Court in its investigations of crimes in Darfur and on any requests for extradition of Sudanese citizens; and Full and unimpeded access to and within Darfur for Sudanese and international humanitarian workers, human rights organizations and media. When the Security Council finds that these conditions have been met, the Darfur Recovery Fund would be terminated and any remaining proceeds distributed to qualifying recipients in accordance with the fund's procedures.
Human Rights Watch has long called on Security Council members to impose individual sanctions (travel bans and asset freezes) on key Sudanese and militia leaders for their role in serious violations of international human rights and humanitarian law.
“In addition to setting up the Darfur Recovery Fund, the Security Council should impose targeted sanctions on those senior Sudanese officials already identified by the UN as human rights abusers,” said Takirambudde.
Source: Human Rights Watch.
Right to freedom of cultural expression
A platform for protecting and promoting cultural diversity
Farah Ashraf
For the first time in history, cultural diversity is established as an immutable human right. The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted in Paris on 20 October 2005, entered into force on March 18 this year, guaranteeing that all forms of cultural expression remain outside the norms and negotiations of organisations regulating trade, with a view to protecting and promoting cultural diversity.
The call for international instruments focusing cultural diversity was experienced at the end of the 20th century with the accelerating process of globalisation. The most broadly accepted definition of culture is indeed that adopted at the Mexico City MONDIACULT World Conference in 1982 which reaffirmed that, in its broadest sense, culture can now be regarded as “the set of distinctive spiritual, material, intellectual, and emotional features of society or a social group. In addition to art and literature, it encompasses lifestyles, basic human rights, value systems, traditions, and beliefs.”
In the 1970's and 1980's the emphasis of UNESCO's work on cultural relations was on “culture and development” and on “the protection of cultural heritage”. The purpose was to ensure the promotion of cultural identity within the framework of a global development policy, which was then being encouraged by the international community. During this period culture was defined and considered in UNESCO's work as a traditional “arts and literature”. But, following the 1982 World Conference on Cultural Policies in Mexico, it was established that “in its widest sense, culture may be said to be the whole complex of distinctive spiritual, material, intellectual and emotional features that characterise a society and social group. It includes not only the arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs”.
According to the Universal Declaration on Cultural Diversity, cultural diversity 'is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind'. It refers to the 'manifold ways in which the cultures of social groups and societies find expression'. According to this definition, the conservation of cultural diversity thus implies maintaining and developing existing cultures while ensuring openness to other cultures. Its obligatory provisions exclusively comprise: diversity of cultural expression, that is diversity in the creation, as well as the production, distribution, communication, exhibition and sale of cultural content, whatever its medium or form, existing or to be invented.
The first part of the Convention contains Objectives (Article 1) and Guiding Principles (Article 2). More precisely, Article 1 lists nine objectives concerning protection and promotion, development of cultural policies, the link between culture and development and “interculturality”; meanwhile, Article 2 establishes various guiding principles, particularly the principle of respect for human rights and fundamental freedoms (provided in paragraph 1). According to Article 3, the Convention “shall apply to the policies and measures adopted by the parties related to the protection and promotion of the diversity of cultural expressions”. Article 4 provides a definition for the term “cultural content”: which is identified as referring to “symbolic meaning, the artistic dimension, and cultural values that originate from express cultural identities”, “cultural expressions”, “cultural activities goods and services”, “cultural industries”, “cultural policies” and “interculturality”.
The Convention identifies that “cultural diversity forms a common heritage of humanity” and considers that “the protection and promotion of the diversity of cultural expressions presuppose the recognition of equal dignity of and respect for all cultures.” Furthermore, the Convention recognises that “cultural activities, goods and services have both an economic and a cultural nature, because they convey identities, values and meanings, and must therefore not be treated as solely having commercial value.”
The Convention also reaffirms the rights of sovereign states to “maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory.” This is considered to be essential to facilitate all countries, and in particular developing countries, to contribute in a more balanced form of globalisation and to gain from the diversity of their cultural expressions in order to ensure ongoing development. Nevertheless, there is a duty for the Parties to support developing countries in the promotion and protection of the diversity of their cultural expressions.
The Convention vigilantly evades to outline all trade-restrictive measures that are presently being used by States. It confines itself to refer to protective measures that reserve a certain space for domestic goods and services or require certain domestic content. Moreover, the provisions refer to domestic support measures. These policies and measures reserve a certain space for domestic cultural goods and services within the national territory; guarantee independent cultural industries' effective access to the means of producing, disseminating and distributing cultural goods and services; or promote the free exchange and circulation of ideas, cultural expressions and cultural goods and services. The independent experts declared that 'protection' should not be seen as a way for States to protect themselves from foreign cultural expressions, but rather should be interpreted in an optimistic way, ensuring that all cultural expressions can exist next to each other.
The convention also addresses the rights of individuals by obligating states parties to ensure all individuals within their States opportunities to create and disseminate cultural expressions and goods and services as well as to have access to the cultural expressions, goods and services. Those rights are guaranteed in particular by the recognition of the legal and social status of artists and creators, and by enforcing their intellectual property rights. This convention also addresses the issue of rights and obligations specific to States to take measures in support of cultural diversity within the limits of respect for basic human rights.
The guarantee of human rights and fundamental freedoms, including freedom of expression, information and communication, is recognized as a precondition for the protection and promotion of cultural diversity. To avoid any misinterpretation, it is explicitly stated "no one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law or to limit the scope thereof." Freedom of expression and information and the free flow of ideas are also explicitly mentioned in the Preamble (Recitals 11 and 12).
The obligations of States at the national level concern the creation of an environment that promotes individuals and social groups to produce cultural expressions and ensures adequate remuneration of their work through intellectual property protection. They also recommend States to educate their population on the importance of cultural diversity, encourage civil society participation and adopt cultural policies in a transparent way. An important obligation to protect vulnerable forms of cultural expressions is included in the present articles 8 and 15 of the Convention. The State parties can be required by the Intergovernmental Committee to take appropriate measures if some cultural expressions are deemed to be vulnerable to or threatened by the possibility of extinction or serious restriction.
In fact, any State party can inform such threats to vulnerable cultural expressions to the Intergovernmental Committee. This obligation at the national level is balanced by the duty to pay proper attention to vulnerable forms of cultural expression in the international cooperation of the State parties.
At the international level, States have the obligation to promote international cooperation for the creation of conditions favorable to the promotion of cultural diversity and to give due account to culture in their development policies. Additionally, developed State parties should make an effort to facilitate cultural exchanges with developing countries by granting preferential treatment to their artists, cultural goods and services.
The convention attempts to address the peaceful coexistence of different cultures and encourages developing and least developed countries to develop and implement policies to support them in this endeavour. That cultural goods and services from developing and least developed countries face complexity in penetrating developed country markets is recognised through the convention's encouragement to balance and openness. The convention also recognises that the situation in developing and least developed countries necessitates maximum flexibility in the domestic implementation of laws and regulations. It has the aim to strengthen international cooperation and harmony aimed at facilitating developing and least developed countries to protect and promote cultural diversity and maintain cultural industries on their national territory and throughout the world.
Bangladesh has recently decided to ratify the Convention on Cultural Expressions, which aspire to promote cooperation for the development and strengthening of resources and capacities of our country in the preservation and promotion of cultural diversity. But for this potential to be accomplished, states must not only ratify the Convention but also actively pursue its purpose of preserving and promoting cultural diversity in the future.
The writer did her LL.B (Hon's) & LL.M from UK.
