Persons with disabilities have right to political participation

Persons with disabilities, like many other marginalised groups, have historically been the object of exclusion from political participation. Unfortunately, ingrained prejudices are slow to change. When it comes to persons with disabilities, the fundamental principle of universal suffrage is still not fully applied in many countries today.
With the entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), it is enshrined in international law that it is not acceptable to deprive persons with disabilities of their fundamental right to vote regardless of the nature or degree of their disability. Article 29 of the CRPD spells out that States Parties should ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others.

The right to effectively and fully participate

The first element raised by Article 29 of the CRPD is the right of persons with disabilities to participate in political life like everyone else, by voting and standing for elections. All persons, including all persons with disabilities, have the same right to actively contribute to and be engaged in wider society, and should have the same opportunities to enjoy this right.

This is both a matter of equal individual rights and of a broader societal interest. As spelled out in the Council of Europe Disability Action Plan, our societies need to reflect the diversity of their citizens and benefit from their varied experience and knowledge. It is crucial to ensure that there is full equality in participation in elections and representation of all members of society in decision-making bodies for the reflection of the diversity of views and needs in national, regional and local legislation and policy development.

Furthermore, this participation should be full and effective, rejecting all forms of barriers and requiring openness by persons who have no disabilities to the participation of persons with disabilities. It calls on public and private actors and institutions to guarantee equal opportunities to all human beings to make productive contributions to the community.

Universal suffrage

Universal suffrage is a fundamental principle and people with disabilities may not be discriminated against in this respect.

The very purpose of the CRPD Convention is to promote, protect and ensure the full and equal enjoyment of the full range of human rights by all persons with disabilities on an equal basis with others, without distinction. It leaves no room for procedures in which judges or medical practitioners would assess the voting competence of a person; as we do not test that capability for someone without disabilities, this would amount to blatant discrimination.

A paramount example of CRPD application in this regard is the recommendation of the Committee of Ministers of the Council of Europe which affirms that persons with disabilities have the right to vote on the same basis as other citizens “whether they have physical, sensory, or intellectual impairments, mental health problems or chronic illnesses”. Furthermore, it asserts that persons with disabilities should not be deprived of this right “by any law limiting their legal capacity, by any judicial or other decision or by any other measure based on their disability, cognitive functioning or perceived capacity.”

Legal capacity and the right to vote

At the heart of the paradigm shift which the CRPD introduced, lies the right to legal capacity, i.e. the right to make one’s own decision and exercise one’s rights. Today, however, persons with intellectual and psychosocial disabilities continue to face barriers in this regard. Very often, their legal capacity is restricted or removed completely, meaning they are no longer entitled to make decisions about their own lives.

Persons with disabilities should be placed at the centre of decision-making processes, being regarded as subjects of their own lives, entitled to the full range of human rights on an equal basis with everyone else.

The aim of the CRPD is to promote the full inclusion and participation of all persons with disabilities in society, including persons with intellectual and psychosocial disabilities. When society deprives individuals of their rights to freely make their own choices and to represent themselves, it contradicts Convention standards. The CRPD places an obligation on governments to ensure that such assistance is provided if needed, including in exercising the right to vote. There is a huge difference between this approach and just depriving someone of their rights. This is the paradigm shift that the CRPD represents: it builds on the idea that we should go further than to just help persons with disabilities to adjust to existing conditions – our societies should seek to adapt to and accommodate everyone, including those with special needs, and including with respect to their right to vote.

The European Court of Human Rights ruled on such a case in 2010, Kiss v Hungary in which a man with psychosocial disabilities was denied the right to vote following the partial loss of his legal capacity The Court interpreted that the indiscriminate removal of voting rights based on a mental disability on account of partial guardianship was not compatible with the principle of universal suffrage enshrined in Article 3 of Protocol no 1 of the European Convention on Human Rights.

Despite this positive aspect of the judgment, the European Court missed the opportunity to go further to declare that any restriction or removal of legal capacity is no longer acceptable and not in accordance with the CRPD which today has been ratified by the absolute majority of EU Member States and by 37 out of the 47 member states of the Council of Europe.

The CRPD Committee has made it increasingly clear that any judicial or administrative decision which removes rights on the basis of disability should be eliminated as a matter of priority from national legislation and practices as demonstrated by its Concluding Observations on Spain:

“The Committee recommends that all relevant legislation be reviewed to ensure that all persons with disabilities, regardless of their impairment, legal status or place of residence, have the right to vote and participate in public life on an equal basis with others. The Committee requests the State party to amend article 3 of Organic Act 5/1985, which allows the denial of the right to vote based on individualized decisions taken by a judge. The amendment should ensure that all persons with disabilities have the right to vote. Furthermore, it is recommended that all persons with disabilities who are elected to a public position are provided with all required support, including personal assistants.”

Recommendations

The international human rights community has an important role to play to guide States to realise the full extent of their obligations under the CRPD. The old approach should be replaced by the United Nations Convention standards around the globe.
Some concrete steps which can be taken by States and the international human rights community are as follows:
(i) States should review and reform discriminatory legislation depriving persons with disabilities of their legal capacity.

(ii) The general principle of non-discrimination should form the basis of government policies geared to ensuring equal rights and opportunities for persons with disabilities through the removal of restrictions on legal capacity, the abolition of voting tests, the introduction of relevant legal provisions, specific forms of assistance, awareness raising and funding.

(iii) States must make their services more accessible to persons with disabilities to exercise their right to vote and be elected, providing, when necessary, reasonable accommodation to persons with disabilities, including the provision of information in plain language, Braille and sign language and the acceptance of a support person to assist or communicate the will of the individual concerned, if needed.

(iv) Universal and regional human rights mechanisms should base their decisions and practices on CRPD standards.

(v) Persons with disabilities and/or their representative organisations should be involved in the whole policy cycle: design, planning, implementation, monitoring and evaluation of policies that affect participation and inclusion of persons with disabilities within the community.

Social Justice necessary for the realisation of Human Rights

“No human rights without social justice”

Keynote speech at ENSAC Conference in Istanbul, 17 April 2013

There is a clear link between social equality and the realisation of human rights. All our experience in human rights work has taught us that human rights are better protected in the more equal societies.

This is obvious in regard to economic and social rights: equality is normally based on an adequate standard of living for the many. In an equal society more people enjoy the right to decent work, quality education, reasonable housing and access to health care. Where the gaps are wide, these very rights tend to be undermined.

Less obvious, but equally true, is that basic freedoms and other civil and political rights also tend to be better protected in the more equal societies.

In those, more people have the possibility to use the instruments that democracy offers, including political participation – and this, in turn tends to strengthen their civil and political rights. In other words, the inter-relationship between equality and human rights tends to go in both directions, they are mutually supportive.

Human rights in politics

This is controversial as it exposes the very political nature of the human rights cause even further.

There has been a deliberate effort from civil society groups and others who have tried to promote human rights to avoid politicisation, especially in the form of party politics.

We have hoped that the agreed standards and norms would be accepted and supported by all governments – irrespective of their political colour. This has to some extent been successful, at least at the stage of the drafting, adopting and ratifying of international human rights treaties.

However, recent developments have demonstrated that the human rights principles cannot be applied in a vacuum. They should be carefully considered in the highly political discussions on economic and security policies.

This time I will limit myself to issues relating to economics and social justice.

Growing gaps

In this part of the world – Europe – social equality has been gradually undermined for several years by now. Gaps in income, wealth and other aspects determining the individual standard of living have widened in Europe for the last three decades.

It is estimated that of the 800 million people living in greater Europe more than 150 million are living in poverty, that is, in households with less than half the country’s median income.

Many elderly people and persons with disabilities live in extremely poor circumstances which have become worse during the economic crisis. Women still suffer from pay inequalities and job discrimination, and even in the richest countries children live in acute poverty in many disadvantaged communities.

Poverty

The poor and the marginalised – among them minorities such as the Roma – tend to lack influence and opportunities to make their voices heard. Surveys have shown that they feel ignored by political parties and they often have little confidence in the authorities.

When they are victims of crime, they hesitate to report this to the police – because of mistrust. In courts, they are at a disadvantage in comparison to those who can hire senior lawyers and in prisons they are over-represented.

Children living in poverty often have little support to cope with problems in school. Some do not speak the majority language and are therefore doubly excluded. Social exclusion is passed on from one generation to the next. Inequalities prevent social mobility.

These problems are indeed consequences of political decisions.

Austerity programs

Social legislation has been “reformed”, social services reduced and support to the most vulnerable cut back. Care for the aged, disabled people and children in trouble have been privatised – and the oversight of these new private enterprises has not been sufficient in a number of cases. Inmates in social institutions have been the victims.

This trend was there already before the 2008 economic crisis but has become worse thereafter.

Enormous sums of tax payers’ money were made available and poured into the banking system in order to prevent a global financial meltdown. Ordinary people were forced to pay for the reckless practices of a few.

Increased unemployment placed a further burden on state budgets and there was therefore less space for social assistance just at the very time when needs grew inevitably.

These developments took place parallel to the advance of neo-liberal ideas which promoted the philosophy that the state should be slimmed and market forces free to solve major problems in society. These attitudes came to affect social policies.

The crisis was made worse by the response from European institutions to the Euro crisis. Draconian austerity programs were introduced in the midst of the recession and unemployment grew further.

Many leading economists questioned the wisdom of this policy and human rights experts warned about the social consequences – but with little impact. Only very recently could we see some signs of rethinking, for instance from the International Monetary Fund.

Extreme nationalistic movements

The original financial crisis turned into a broader economic crisis which in turn ended up in a political crisis – and a crisis of basic values. We have clear tendencies of tensions in our societies, signs of lacking trust in the political establishment and even outbursts of social unrest.

One side effect has been the growth of extreme nationalistic movements, some of them heavily Islamophobic, anti-Semitic, anti-Roma and anti-migrants. These racist and xenophobic tendencies do certainly complicate the work for human rights in our societies.

In his inauguration speech in January 2009, US President Barack Obama made the point that the crisis is not only the result of reckless risk-taking by some bank officials or the “greed and irresponsibility on the part of some”. It was also, he said, the result of “our collective failure to make hard choices and prepare the nation for a new age”.

Inequalities cannot be ignored

That new age will not arrive if we continue to ignore the deep inequalities and injustices in our societies. These inequalities undermine social cohesion and thereby threaten the security of all; they clearly violate the principles of human rights which we have pledged to respect.

Instead of allowing these inequalities to grow even further, the current global crisis ought to be a turning point for concrete measures to restore social justice.

It has been shown that an equal, rights-respecting society is better for everyone, not only for the most vulnerable. Equal communities have less illness and a longer life expectancy than unequal communities. Facts about social problems and crime rates demonstrate that inequalities, even in the most affluent societies, create insecurity which harms everyone.

It has also to be recognised that the crisis goes deeper than its obvious economic aspects; it touches on questions of public confidence and ethical values. It is time to start building a cohesive society again built on respect for the individual whoever he or she is.

Right to an adequate standard of living

This is a human rights challenge. The Universal Declaration of Human Rights says that all human beings have the right to a standard of living adequate for their health and well-being, including food, clothing, housing and medical care (Article 25).

An overwhelming majority of states have ratified the UN Covenant on Economic, Social and Cultural Rights and many European states have endorsed the European Social Charter and the revised European Social Charter. The UN Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities have got wide support.

However, we have to realise that social justice cannot be established only by way of traditional human rights instruments, even if they are updated and modernised.

The enormous gap between the haves and have-nots is a major ethical, ideological and political challenge – the resolution of which will require change in many aspects of our societies.

It is necessary to analyse in more depth how these gaps in human rights protection have emerged and grown: the link between the extreme wealth of some and the extreme poverty of others has to be analysed. The reckless speculation that caused the banking crisis – leading to untold tragedies for many people – has illustrated the need for regulation and accountability.

Corruption

Corruption is widespread, almost endemic, in several European countries. Too many politicians have allowed themselves to exchange favours with big business interests.

When corrupt practices are tolerated in local and central government administration, it is the poor who suffer the consequences. Occasionally, people are forced to pay bribes for services which they should receive for free and as of right.

The unequal status of women is another reflection of continued discrimination and, at the same time, a source of injustice on a broad scale. It is estimated that about two thirds of those who live in absolute poverty are women.

They are often in weak negotiating positions, in poor communities, and are faced with almost insurmountable barriers preventing them from effectively asserting their rights. This is a tremendous loss for the whole of society.

The marginalisation of the poor also owes a lot to basic attitudes. When political leaders and opinion formers engage in rhetoric implying, for instance, that the poor have only themselves to blame, they justify political inaction in the face of poverty.

There has also been a tendency to see marginalised groups as security threats rather than as people in need.

Credibility gaps

We are facing several inter-related gaps. One disjunction is the distance between the agreed standards on human rights on the one hand, and continuing violations on the other – the implementation gap.

Another gap lies in the striking difference between the promises made by politicians (not least during election campaigns), and what is actually delivered when they are in office.

These gaps are different sides of the same problem and they tend to undermine public trust in the possibility of social justice. I have become increasingly worried about this credibility gap and its consequences more generally for democracy and, thereby, the protection of human rights.

In the current atmosphere of xenophobia and reduced empathy, extremist political groups have been given an increased possibility to spread their message of fear and hatred. This is a threat against democracy itself – calling for reflection and action. The challenge is to build a society in which everyone is included and no one is left behind.

More needs to be done against transphobia

During six years I travelled frequently to member states of the Council of Europe. I was often reminded of the continued discrimination against individuals on account of their gender identity. Transgender persons still encounter severe problems in their daily lives as their identity is met with bureaucratic insensitivity, suspicion or outright rejection.

There have been some extremely brutal hate crimes against transgender persons. My discussions with non-governmental organisations defending their rights indicate that a number of hate crimes (even very serious ones) go unreported. One of the reasons appears to be a lack of trust among transgender people towards the police.

Some people seem to have problems with the mere existence of human beings whose inner identity is not the same as their appearance or as the one determined at birth. The aggression directed against transgender people cannot, however, be dismissed only as a psychological problem of those who do not know better. These attitudes victimise a number of innocent and vulnerable persons and must therefore be countered.

I have been struck by the lack of knowledge about the human rights issues at stake for transgender persons, even among political decision makers. This is probably the reason why more has not been done to address transphobia and discrimination on grounds of gender identity and gender expression. The result is that, in all countries, individuals are discriminated against, including in such crucial areas as housing, employment and health care.

In a number of cases, problems start already at the stage of the state recognising a person’s gender identity when issuing birth certificates, passports and other documents. Most transgender persons who want to state that they no longer identify with their gender as registered at birth have difficulties in processing those changes in official records. This in turn has caused a number of practical problems when showing identification papers: in the bank or the post office, when using a credit card, crossing a border or in other similar situations.

One well-publicised case related to Dr Lydia Foy in Ireland who has tried for years to obtain a birth certificate to reflect her female gender since April 1997. Five years ago the Irish High Court delivered a landmark judgment ruling that the state was in breach of Article 8 of the European Convention on Human Rights and the Irish Government later withdrew its appeal.

Therefore, not only should Lydia Foy be legally recognised as a woman, it was obvious that the government had an obligation to introduce legislation to recognise transgender persons in their new gender, and allow them to obtain new birth certificates. I was surprised – and disappointed – to learn when I recently visited Dublin that this had not happened.

In fact, these problems have now been addressed in most European countries, where it has become possible to obtain corrections of such records and also obtain new forenames. However, in some countries a change of birth certificate is still not allowed and, in others, such changes are permitted only upon proof that a person is sterilised, declared infertile, or has gone through other medical procedures such as gender reassignment surgery or hormone treatment. The medical obstacles thereby created for the individual are ignored, and the opinion of the individual is seen as insufficient.
Additionally, many countries require that a person divorce before the new gender can be recognised – regardless of whether or not the partners actually want to divorce. This in turn has a negative impact on the position of children, both in terms of their rights, as well as in terms of their relationships with their parents. In fact, in several countries, the parent who has undergone gender change will lose custody rights. Such legislation needs to be reformed in the spirit of the best interests of the child.

To require surgery as a condition for enjoying the right to one’s gender identity ignores the fact that only about 10% of the transgender persons in Europe undergo gender reassignment operations.

While the official policy in some situations makes surgery a condition for the gender change to be accepted, such operations are not always a practical option for those who want them. A study by ILGA-Europe and TransGender Europe showed that a large proportion of transgender respondents in the European Union are refused state funding to alter their sex.

Even access to ordinary health care can be a problem for people with a “non-standard” gender identity. The lack of trained staff and the lack of familiarity with the specific health care needs of transgender persons – or simply prejudices towards transgender people – render this group of people very vulnerable to unpredictable and sometimes hostile responses when they use medical services.

In the United Kingdom, some 4 000 male-to-female transgender persons have been struggling to get their gender status accepted, including for the purpose of accessing pension benefits. In spite of overwhelming legal arguments, they have so far been denied the pension rights that all other women in the country have.

Other obstacles stand in the way of living a normal life like everyone else. A major problem for transgender persons is the harassment and discrimination many of them face in workplaces. The effect is that some just leave their jobs, while others avoid undergoing gender reassignment surgery as they fear being stigmatised.

Data presented by the Agency for Fundamental Rights has shown that some jobless transgender persons have been unable to find other employment and have then ended up in prostitution. A report from Human Rights Watch on the situation in Turkey drew attention to the situation of transgender prostitutes in that country – victimised by violence, drug addiction, sexual abuse, lack of health insurance, homelessness, police attacks and a high risk of HIV/Aids.

To date, very little factual information has been gathered on the situation of transgender people in Council of Europe member states. This information is needed to determine where the rights of transgender persons to recognition of their identity are infringed, and the extent of their problems in terms of discrimination and violence, and when accessing health care or other public services.

The European Court of Human Rights has ruled that states are required to recognise the gender change in post-operative transsexuals. A case was raised by Christine Goodwin from the United Kingdom who herself was a post-operative male-to-female transsexual. She complained of sexual harassment in the workplace, discrimination in relation to contributions to the National Insurance system, and denial of her right to marry.

The Court stated that:

… the very essence of the Convention was respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy was an important principle underlying the interpretation of its guarantees, protection was given to the personal sphere of each individual, including the right to establish details of their identity as human beings.

… In the twenty-first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society could no longer be regarded as a matter of controversy requiring the lapse of time to cast clear light on the issues involved.

There is no excuse now for not granting this minority their full and unconditional human rights. This message from the Court has to be followed through in all Council of Europe member states. States must take all necessary actions to ensure that transphobia is stopped and to end any discrimination against transgender persons.

Guantanamo – still a scandal

The Obama administration appears to be lost on the issue of Guantanamo. The decision to close this detention facility does not seem to be any closer to implementation, largely due to opposition in the Congress.There are now 166 prisoners remaining in Gitmo.

A few of them are the so called High Value Detainees who were brought there after having been interrogated under torture in secret CIA-prisons in Poland, Romania and other places. The problem in bringing them to trial is that the defense lawyers certainly will demand that the charges cannot be accepted precisely because of the torture during the investigation.

Another group of prisoners are those whom have been “cleared” but could not be let free because there was nowhere for them to go as they had been stigmatized in the come to the US and the willingness in other countries to receive them has run thin.

Then there are about four dozen prisoners deemed as “dangerous” but could not be prosecuted. They have demonstrated their anti-American views during the interrogations and are seen as dangerous. Several of them come from Yemen which is a further complication, or course. However, no crime has been proven in these cases.

Is it legal to keep people deprived of their liberty on this basis?

US authorities argue that there is a war against al Qaeda and that the prisoners are to be seen as captured enemies in that war and therefore the Third Geneva Convention would apply – they could be seen as Prisoners of War whom could be kept until the war is over.

However, it could definitely be questioned whether the US combat against terrorism is indeed a war in the sense of international humanitarian law. This is not a battle against any enemy state but against individuals spread out over a number of countries – this is different.

Also, this point is theoretical because the US authorities do not respect the rules which would apply in war time. They do not respect Geneva Convention on the treatment of Prisoners of War. They never did – and still don’t, even if the material conditions for the detainees on Guantanamo have improved since 2002.

The treaty on POW:s is very precise. The basic idea is that the prisoners should be treated in a humane manner. It certainly, does not allow for torture or other cruel and inhuman treatment. The detainees are only required to give information about their identity. They should have the right to correspond with their family and have several other rights. None of these requirements have been respected.

The truth is that Guantanamo is a human rights scandal. If there is evidence about criminal activities against some of the detainees, they should be brought to a proper trial. Others must be freed. Suspicions that they might turn against US interests in the future, is not a legally accepted reason to keep them locked up.

Protecting rights against austerity policies – speech in Dublin

“Access to Justice for All –
Regardless of Their Means”

Annual Dave Ellis Lecture
By Thomas Hammarberg
Dublin, 13 December 2012

The economic crisis has been talked about as if we had been struck by an unfortunate natural disaster. But the crisis is man-made. It is the result of a series of decisions taken by human beings, among them prominent bankers, investors – and politicians.
This crisis could have been avoided.
Now, Ireland and several other European countries have to face the consequences. The damages have to be limited:
– the damage on the many individual victims, not least on the poor and the most vulnerable;
– the damage on the social fabric as a whole; the damage on trust and the spirit of togetherness and genuine democracy.
This is a political challenge, unprecedented in our time. And it is certainly a human rights priority.
Furthermore, there is an absolute need to learn from this bitter lesson. This in turn requires an honest, self-critical analysis on why it went wrong and how such a disaster can be avoided in the future.

A Presidential analysis
In fact, President Obama, in his inauguration speech four years ago, asked for such a discussion. He said that the crisis was not only the result of “reckless risk-taking by some bank officials” or the “greed on the part of some” but also the result of “our collective failure to make hard choices and prepare [ourselves] for a new age”.
There was little constructive response to this invitation. However, Barak Obama himself came back with a more detailed analysis in a speech in Kansas last December. He mentioned that the crisis had roots long before the recession.
“Those at the very top grew wealthier from their incomes and investments than ever before. But everyone else struggled with costs that were growing and paychecks that weren´t – and too many families found themselves racking up more and more debt just to keep up”.
He continued:
“We all know the story by now: Mortgages sold to people who could not afford them, or sometimes even understand them. Banks and investors allowed to keep packaging the risk and selling it off. Huge bets – and huge bonuses – made with other people’s money on the line”.
He pointed at the failure of the regulators to warn about the dangers and then he summarized his verdict on what had happened:
“It was wrong. It combined the breathtaking greed of a few with irresponsibility across the system”.

Austerity measures against recession
I quoted the US President as I could not find a speech with similar clarity from any leading European politician. However, his analysis is indeed relevant for us Europeans as well. For one, the gap between the rich and the poor has grown also in Europe during the past three decades.
It was obvious that bank regulations had been insufficient, but it was deemed necessary to pour state money – taxpayers’ money – into the banking system in order to prevent a financial meltdown. We were landed in a situation when debts were nationalised while profits stayed privatised.
Unemployment grew during the recession which in turn reduced state incomes and increased state expenditures. The result was that even less resources became available for social protection.
The inflexibility of the Euro system worsened the crisis in large parts of Europe.
The response from the decision makers has been to force through a a dogmatic austerity policy in spite of the recession. The idea has obviously been was that further budget cuts would produce recovery as the investors would become convinced that good returns were possible.
But the recovery has been anaemic. This is of course not a surprise; growing unemployment has decreased the purchasing power and thereby the demand in the overall economy. The spiral has gone downwards as a number of experienced and independent economists had foreseen.
An austerity program during a severe recession is so obviously in conflict with all wisdom that one wonders if there has not been another agenda behind, an ideological one: to downsize the government.

Obligation to protect economic and social rights
Is there a connection between all this and our agreed human rights standards?
Usually, we try to separate our human rights demands from party politics and political ideologies. This has become much more difficult now when very basic human rights standards are undermined by economic, ideologically- driven decisions which even the US President describes as “reckless”. Social and economic rights have been violated on a broad scale.
It must be stressed that economic and social rights, also, are human rights. There have been attempts to downgrade the status of these rights as compared to civil and political rights. One sometimes hear that the former ones are only “second generation” rights.
In fact, there are concerted efforts to go further and deny the legitimacy of the very concept of rights in relation to these economic and social acts of injustice.
It is therefore important to remember how our human standards in fact have developed. When Franklin D. Roosevelt defined the “Four Freedoms” in his famous State of the Union speech 1942, he included “Freedom from Want” as one of them.
The 1948 Universal Declaration of Human Rights includes several articles about social rights, including the right for all human beings to “a standard of living adequate for their health and well-being, including food, clothing, housing and medical care”.
Human rights conventions adopted through the years, like the one on children’s rights and the one on rights of persons with disability, illustrate how the basic freedoms inter-relate with social and economic rights. The various rights are interdependent. Another reflection of this can be seen in a number of ILO conventions.
States have in most cases ratified these treaties. Governments are obliged to implement their standards “to the maximum extent of their available resources”, as the formulation is in a couple of those agreements.
I would propose that the spirit of this obligation also urges us to take steps to prevent man-made crisis situations like the one we have had in the recent years.
This can obviously not be done by further down-sizing our common, public institutions.
On the contrary, there is, for instance, a need for effective regulations of the banking system, in particular of those banks which are “too big to fail”, those which will be bailed out by the state when in a crisis.
I have been worried to see a trend that even the offices of the ombudsmen and the equality bodies have had their budgets cut – now when their work has become even more urgent. The crisis has created the need for institutions and procedures to protect the rights of vulnerable people.
I am aware of the discussion on these issues here in Ireland and hope that the changes – including the merger of the Commission and the Equality body – will not result in a reduced capacity to monitor and act upon cases and situations of human rights problems in the republic.
It is also essential that that monitoring be done in broad consultation with civil society. When in Iceland I learnt about the functioning of a “Welfare Watch” set up in cooperation with the civil society in order to ensure precisely that. I heard that FLAC has proposed special procedures for poverty impact assessments.

Equal societies are more fair – and better for everyone
It is by now demonstrated that equal societies are better off in many respects, not least in the social sphere. They have less illness and a longer life expectancy than unequal communities. Factual data about social problems and crime rates show that inequalities, even in the most rich societies, create insecurity which harms everyone.
Do the agreed human rights norms support an advocacy for more equality in society?
Yes, several of the international human rights treaties include provisions against all forms discrimination. This is broadly interpreted to include positive actions for persons who for different reasons are disadvantaged – in order for them to be ensured equal opportunities.
The treaties describe minimum standards but do not put a ceiling on higher social and economic standards for any individual. However, there is a golden rule that one’s freedom does not include the right to harm and limit some else’s freedom.
I would argue that the rapid and enormous enrichment of a few indeed has harmed the interests and wellbeing of others before and during this crisis.
My conclusion is that it is not sufficient to pay lip service to the “social dimension” in the debate about economic policies. The agreed standards on social and economic rights must be given a much more prominent position when crucial decisions are to be taken on all aspects of economic policy.
This is the lesson.

Civil society – important counter balance
Will this crisis remind us about the need for social solidarity and political idealism? Do we, to use Barak Obama’s language again, have the courage to make the hard choices and prepare ourselves for a new age?
I am convinced that many do dream about an age in which greed is not rewarded, but care and respect for others would be. An age in which we all have the possibilities – and the relevant information – we need to exercise our democratic right to influence political decisions, both locally and globally.
With this I have come to the role of civil society.
I believe we cannot overestimate the importance of non-governmental groups and initiatives as a counter balance to the trends I have just described.
The deliberate and gradual weakening of the trade unions is therefore of great concern. Likewise, there is a need to oppose a tendency among governments to subcontract some of their basic obligations to non-governmental entities while at the same time undermining their possibilities to pursue advocacy programs. Instead they should welcome and encourage reform proposals from civil society.
Particularly important are NGO:s which are engaged in concrete community work; support and represent the rights of individuals and families; and use their knowledge and experience to advocate reforms for justice.
Free Legal Advice Centres is one of them. FLAC campaigns for access to justice for all, regardless of their means. It defines access to justice in a broader sense – access to basic legal information; access to legal aid and advice to defend one’s rights in the court system; access to social security; and access to a fair solution in cases of chronic over-indeptedness.
These efforts are crucial. They give tangible relief to people whose rights are at risk. They set an admirable example. They represent a caring, democratic spirit which gives some hope in the darkness.
FLAC’s work on a fair and workable legislation on personal insolvency cases, for instance, is a model of meaningful, relevant initiatives. I understand that such efforts are very much in the spirit of Dave Ellis, whose many years of community work with marginalised individuals and communities has been an inspiration to FLAC activists and others.

Destitute and vulnerable people
Work in a caring, democratic spirit does require that special attention is paid to destitute and marginalised people, many of them belonging to minorities.
Roma people, travellers and migrants are not only generally disadvantaged in our European societies and often denied access to justice. They have also been targeted by racist extremists and suffered from hate speech and even hate crimes – and increasingly so during the economic crisis.
Lesbians, gays. bisexual and transgender persons have also been discriminated and harassed, not least in some of the former Communist countries. Unfortunately, the prejudices are widespread also in countries with a longer democratic tradition.
I know that FLAC has supported the struggle of Dr. Lydia Foy to have her real gender identity fully recognised. Five years have passed since it was clarified that Irish law was not compatible with the European Convention on Human Rights and I really thought that this would have been remedied by now, that a transgender recognition legislation would be in place. Such a step would be natural in a caring society in which human rights for all are a priority.
Persons with disabilities have not been protected against the negative consequences of the European crisis in spite of the pledges given in the 2006 UN Convention on the Rights of Persons with Disabilities. Budgets for carers and support for independent living projects have been reduced.
Elderly people have been hit by the austerity measures. Pensions and allowances have not been increased parallel to price increases. In particular, women – some of them with little or no old-age allowance – have fallen into destitution. There appears to be no strong voice for their interests among the decision makers.
As you know, we have also child poverty in today’s Europe. Children are growing up in conditions which will make many of them disadvantaged in schooling and in future job seeking. Cuts of child benefits have a most negative impact on families which are already destitute. Poverty tends to go from one generation to the next. Not to break that vicious cycle is a terrible waste, but also a human tragedy.

The most poor have least access to justice
Poverty and marginalisation is not only an issue of limited economic resources, it is a question of powerlessness – lack of access to those who decide.
The EU Fundamental Rights Agency has now published another report on access to justice problems within the European Union bloc. It organised a series of interviews in eight countries among persons who had complained as well as among people who had had problems but for some reason had not sought remedies.
The report showed a number of problems: little help to find an entry point where one could start claiming one’s rights; complicated procedures which were not explained; difficulties to understand the law; and uneven access to legal aid.
The report confirms that those most of need of justice and fair treatment tend to be those with least access.
That is why FLAC’s campaign is so totally relevant.

EU in Oslo: unanswered questions on secret detention and torture during the “war on terror”

On Monday the European Union will receive the Nobel Peace Prize. Questions have been raised, but one body within the EU structures has indeed made attempts to stand up for values which we connect with this prestigious award: the European Parliament.

However, the EP has not always had a constructive response from member states or even other parts of the EU structures in Brussels.

In September the parliamentarians adopted a major resolution urging member states to come out with the truth on their involvement in the secret CIA program in the “war on terror”. Their position was based on a thorough, factual report spelling out facts about European complicity in crimes of torture, secret detention and enforced disappearance.

The parliament criticized the fact that these serious human rights violations had not been properly investigated – despite mounting evidence compiled by international human rights institutions, civil society groups and some media.

European governments provided the US Central Intelligence Agency with the conditions to fly apprehended suspects to clandestine interrogation centres. We also know that severe torture was used in these “black holes”, including waterboarding (simulated drowning), mock execution and threats to the family members.

All detainees brought to these secret interrogations centres, as well as numerous other suspects handed over to CIA, were subjected multiple times to the degrading and disorientating process of rendition: invasively stripped naked, drugged, shackled and subdued, then forced aboard hired private aircraft to be flown to destinations and fates unknown.

Secure facilities were furnished in Poland, Romania and Lithuania to meet the CIA’s demand to hold its high-value detainees, or “HVDs”, in absolute secrecy. For long, the Governments of these countries were in total denial about this cooperation.

Now, at long last, investigations are underway in Poland. A judicial inquiry is conducted by a group of special prosecutors in Krakow. According to the press, the former head of security services was informed that he would be charged. However, there are some concerns that progress is slow, in particular regarding the very decision to allow CIA to set up its interrogation centre in the country.

In Lithuania it was established through a parliamentary committee that two sites had indeed been equipped for secret detention by CIA. However, the general prosecutor has closed his investigation arguing that no evidence had been produced indicating that these were in fact used. European parliamentarians, non-governmental groups and attorneys have pleaded for a re-opening of the investigations.

The Romanian authorities have so far kept a position of total denial and there has been no serious investigation in spite of convincing documentation provided by Council of Europe and others. Only after the European Parliament resolution did the Romanian President Basescu admit that an independent judicial investigation ought to be undertaken. If followed through, this would certainly be an important step towards putting an end to the atmosphere of impunity.

Hiding the truth can only undermine the credibility of the European promise of human rights and democratic values. The EU Commission, Council and member states should take the parliament report and resolution very seriously. Europe must come clean about what was done in the name of our common security. Robust investigations and prosecutions must be pursued wherever violations have occurred.

(Helene Flautre, the EP rapporteur on the CIA program in Europe contributed to this comment).

Janusz Korczak – a man whose example and writings inspired the work for children’s rights

The Polish government decided that 2012 should be the year of Janusz Korczak – 70 years after his execution by the Nazis and 100 years after he started working in an orphanage in Warsaw.

There have been conferences or seminars during the year in several countries about this remarkable man and his teaching – much like the Swedish information activities in memory of Raoul Wallenberg. The final meeting is now being held in Warsaw.

Janusz Korczak may be more known thorough how his life ended. In August 1942 the Nazi troops decided that the orphanage must be closed and Korczak, his staff colleagues and the 192 children were marched to through the ghetto to the train taking them to the Treblinka and the gas chamber. Friends intevened on behalf of Korczak and he was offered an escape, but he refused to leave the children.

Focus during the Korczak year has more been on his writing. No doubt his books had an influence when the UN Convention on the Rights of the Child was drafted in the nineteen-eighties.

Still, his teaching deserves more attention. Korczak was one of those thinkers who was ahead of his time. Some of his ideas are still not fully understood and they are absolutely relevant in the work for children’s rights today.

Janusz Korczak, whose original name was Henryk Goldszmit, was born in a Jewish, assimilated middle class family in Warsaw. His first years appear to have been happy, his father was a successful lawyer and there were no economic problems. This changed when Henryk was eleven and his father had a serious mental break down which ruined his family.

In spite of poverty he managed to write novels already in his early twenties and get them published. This was when he started using his pen name, Janusz Korczak. However, when concluding that “writing is only words, medicine is deeds”, he focused on his medical studies. Already at this stage he became more and more committed to the fate of destitute children.

Soon after he qualified as a doctor he was enlisted in the Russian army during the Russo-Japanese war. As always, he was writing:

“War is an abomination. Especially because no one reports how many children are hungry, ill treated, and left without protection. Before a nation goes to war it should stop to think of the innocent children who will be injured, killed, or orphaned. No cause, no war is worth depriving children of their natural right to happiness. One must think first of the child before making revolutions”.

From 1904, he acted regularly as supervisor at summer camps for poor children. He focused increasingly on child psychology and pedagogy. While spending more time on teaching and giving lectures, he continued his medical practice. He was known to demand high fees from wealthy patients and treat the poor free of charge.

At the age of 34 he was asked to become director of a Jewish orphanage – a position he would keep until his last day. As a doctor he cared for their physical well-being, weighed and measured them and gave them medicine. Seeing that the deeper wounds related to broken families, poverty and other social ills, he redefined the very concept of health care. There, he would develop his talents as medical doctor, teacher but also as author and therapist to support children and promote their rights.

He saw the importance of child-friendly learning methods, arguing that ethics was more important than pure facts. He introduced a democratic spirit in the orphanage in which the children themselves had a say in the decisions – but also had to carry the burden to ensure that decisions were enforced. This “children’s republic” had a parliament and a newspaper.

Most well-known is perhaps his experiment with a system of justice. A constitution was written in the orphanage and a court established among the children to deal with alleged injustices. Also Korczak himself was charged a couple of times for mistakes. The punishments after these trials were regularly to ask for forgiveness and be excused.

With an extra-ordinary capacity to listen and relate, Korczak had entered into a life-long study of children’s reactions, emotions and behaviour. He filled his notebooks with observations, reflected upon them and formulated aphorisms addressed to parents and other adults, many of them in poetic form. He became an interpreter between the world of children and the grown-ups.

During a wave of anti-Semitism in Poland he was dismissed from the radio after several years as the popular “Old Doctor” – answering questions from listeners. His colleagues at the broadcast station wrote a letter of protest in which they described how he could “talk with children as they were adults and with adults as if the were children”.

His books for children, and not least “King Matt the First”, are indeed demanding and do not hide conflicts and sorrow – in this being similar to the later writings of Astrid Lindgren. Korczak’s messages to adults are written with a great portion of child-like clarity.

He became the first and most radical campaigner for children’s rights. When reading the Declaration of the Rights of the Child adopted by the League of Nations 1924 he was disappointed. It was not clear enough, it was begging rather than insisting. He wanted rights – not charity – and rights now, not in the far future:

“Children are not the people of tomorrow, but are people of today.
They have a right to be taken seriously,
And to be treated with tenderness and respect.
They should be allowed to grow into
Whoever they were meant to be –
‘The unknown person’ inside each of them
is our hope for the future”.

For Korczak two rights were particularly important: the right to receive love and the right to respect. He developed these in two longer texts for parents and teachers. “How to Love a Child” was prepared on the battlefields of World War I and The Child’s Right to Respect written in the nineteen-twenties.

Korczak pleaded for equality between children and adults:

“People speak of the old with weighty respect.
They speak of the child patronizingly and condescendingly.
This is wrong, for the child too deserves respect.
He is still small, weak.
He does not know much, he cannot do much as yet.
But his future – what he will be when he grows up
commands us to respect him as we respect the old”.

Many children react against adult hypocrisy towards them. This is how Korczak formulated this feeling – while in language identifying himself with the grown-ups (using “we”) but in substance standing on the side of children:

“We do not like it when children criticize us.
They are not permitted to notice our mistakes, our absurdities.
We appear before them in the garb of perfection.
We play with children using marked cards.
We win against the low cards of childhood
with the aces of adulthood.
Cheaters that we are, we shuffle the cards
in such a way that we deal ourselves everything”.

Korczak worked in the worst of circumstances and experienced how immensely important it was that at least some adults treated the child with respect and love. Abuse caused deep scars:

“There are many terrible things in this world, but the worst is when a child is afraid of his father, mother or teacher”.

Korczak dared to use the word “love” and did so repeatedly. But he was not sentimental – not even towards children. His education was not a laissez-faire approach, he pleaded for rights with responsibilities. In the orphanage each child had a task. He argued against too much protection, children should also have the right to learn from experience, they must be able to test and even to take the risk of harming themselves.

Many of the points Korczak made are about respecting the integrity of the child. He argued that the child must have the right to have secrets – reading a diary without permission is wrong. Another right he proposed – probably surprising to some – was the child’s right to respect for own possessions and budget. Even if he or she owns almost nothing, it is important that the ownership of these few belongings is respected.

The 1979 Year of the Child was followed by the drafting of a United Nations Convention on the Rights of the Child. Korczak’s thinking played a role – I know this for certain as I took part in the process.

The final text was adopted by the General Assembly in 1989. Now 23 years have passed and it is time to take stock again – in the spirit of Janusz Korczak.