Draft declaration on the right to international solidarity

In her most recent report to the Human Rights Council (A/HRC/35/35), the Independent Expert on human rights and international solidarity, Virginia Dandan, traced the history of the mandate of the Independent Expert and presented a draft declaration on the right to international solidarity, as mandated by the Council in its resolution 26/6.

The draft declaration is a consolidation of contributions from various experts of the United Nations, academic institutions and civil society, in particular non-governmental organizations, in addition to the results of studies, activities and work carried out by two successive mandate holders with the assistance of the Human Rights Council Advisory Committee. It has been refined through a process of regional consultations with States and civil society and pursuant to a meeting of legal experts.

In the present report, she illustrates the process of crafting the draft declaration, tracing it from its precursors in international law and General Assembly resolutions, through her own work and through input from other actors, to its current state.

She then demonstrates the practical relevance of the draft declaration by explaining its applicability to the achievement of Sustainable Development Goal 17 of the 2030 Agenda for Sustainable Development, to strengthen the means of implementation and revitalize the global partnership for sustainable development.

In her previous reports to the General Assembly (A/70/316 and A/71/280), the Independent Expert fully explained the international normative basis of the principle of international solidarity and the legal framework for the right to international solidarity. The legal framework is derived from three general sources: the Charter of the United Nations; the Universal Declaration of Human Rights and international human rights treaties; and the commitments relating to human rights and development that have been adopted by States at United Nations international conferences and summits and in General Assembly resolutions.

Those previous reports enumerated the specific provisions of the Charter, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities, all of which underline the importance of international solidarity and international cooperation in international law, as well as the provisions of a number of international declarations and commitments that are reflective of international solidarity.

In addition, a number of General Assembly resolutions highlight the necessity of international solidarity to the achievement of common goals and the fulfilment of human rights obligations.

In 1970, the General Assembly adopted resolution 2625 (XXV), on the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations. The Assembly affirmed therein the duty of States to cooperate in accordance with the Charter and noted the necessity of strengthening the principle of solidarity contained within the Charter for the purpose of addressing global challenges and for the promotion of universal respect for, and observance of, human rights and fundamental freedoms.

In 2002, in its resolution 57/265, the General Assembly established the World Solidarity Fund, with the goal of eradicating poverty and promoting social and human development.

In 2005, its resolution 60/209, while commemorating the implementation of the first United Nations Decade for the Eradication of Poverty, the General Assembly recalled that international solidarity had been identified in the United Nations Millennium Declaration as one of the fundamental and universal values that should underlie relations between peoples and proclaimed International Human Solidarity Day, to be celebrated on 20 December each year.

Furthermore, in 2006, in its resolution 60/251, establishing the Human Rights Council, the General Assembly recognized that the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings.

At the twenty-sixth session of the Human Rights Council, in June 2014, the Independent Expert presented a report containing a proposed draft declaration on the right of peoples and individuals to international solidarity (A/HRC/26/34, annex). She explained therein that, because the document had been prepared in the absence of comments and input from most States, she had used the word “proposed” in the title of the draft declaration. In that regard, one of her recommendations was that the Council hold regional consultations on the proposed draft declaration so that she would be able to gather as much input as possible from States and their representatives. At the end of the consultation cycle, she would consolidate and consider the output, revise the proposed draft declaration as appropriate and submit an amended version for consideration.

In its resolution 26/6, the Human Rights Council noted with appreciation the proposed draft declaration and decided that, to obtain further input from as many Member States as possible, the Independent Expert, with the assistance of the Office of the United Nations High Commissioner for Human Rights, would convene regional consultations, consolidate and consider the output therefrom and submit a report at the thirty-second session, in June 2016. The Independent Expert was also requested to submit a revised draft declaration to the Council and the General Assembly before the end of her second term, in June 2017.

The Independent Expert has revised the proposed draft declaration pursuant to five regional consultations conducted in 2015 and 2016 and an expert group meeting held in February 2017, as well as significant further reflection and research. The goals of that process were to incorporate the perspectives of Member States, civil society and experts into the draft declaration, as appropriate, and to harmonize the document with the existing framework of international law, in particular international human rights law.

Throughout the draft declaration, the Independent Expert has incorporated references to language and concepts already agreed upon in established international legal documents, including the Charter, the Universal Declaration of Human Rights and the United Nations Framework Convention on Climate Change, in order to strengthen the preamble and further develop a well-founded legal framework for the right to international solidarity.

During the regional consultations, there was broad agreement that the title could be simplified to “draft declaration on the right to international solidarity”, because the rights holders, namely peoples and individuals, were clearly indicated in the text itself.

The discussions of the expert group meeting included meaningful consideration of the structure of the declaration as a whole and of questions as to whether it would be best to first define the right to international solidarity, since that was the subject of the declaration, or to begin instead by defining the broader concept of international solidarity before proceeding to the substance of the right.

The expert group meeting also included significant discussion on the relevance of such a draft declaration at a time of rising nationalism and fragmentation. The experts suggested that current events had truly highlighted the need for such a document. They also suggested that a human rights-based vision of international solidarity could create an alternative narrative to that of globalization, which was increasingly perceived to be a harmful and entirely negative force. There was uniform recognition that, despite political sentiment that focused on divisions, humans existed in a state of interconnectedness and interdependence and there were global challenges that could not be resolved without international solidarity.

Consistent with the recommendations received during the regional consultations and, in particular, during the expert group meeting, the Independent Expert has synchronized the preamble with the operative paragraphs, providing a solid context while avoiding duplication.

The Independent Expert has also ensured that the preamble reflects the full range of international law that has its basis in international solidarity, adding specific references to international humanitarian and refugee law, climate change law, labour law and other areas of global concern, as well as to regional treaties and covenants.

The expert group carefully considered how best to reflect the incorporation of international solidarity throughout international law, including how to ensure that each area of law and each international instrument would be highlighted appropriately and that the documents referenced would truly demonstrate international solidarity.

Definition, principles and objectives of international solidarity

Following the recommendations, the Independent Expert sought to consolidate articles defining international solidarity. She identified international solidarity as a foundational principle underlying international law and enumerated related principles articulated in international law that provide a basis for it.

The expert group considered how to emphasize the primacy of human rights in the definition of international solidarity while also recognizing that the principle was broad in nature, extending to every facet of international law and cooperation, and thus relevant in addressing all human rights and human needs.

In response to that discussion, the Independent Expert included reactive solidarity in the constituent elements listed in the text. That list represents an effort to capture most, if not all, of the types of action taken by States and the international community that could be viewed as expressing international solidarity.

Right to international solidarity

The Independent Expert has taken care to clearly and meaningfully define the right to international solidarity, mindful of the comments received and of established international law. Responding to the suggestions made, the Independent Expert simplified the articles articulating the holders and duty bearers of the right and clarified the definition of the non-State actors who, in addition to States, are identified as duty bearers of the right.

Echoing a conversation that arose during the regional consultations, the expert group also debated whether the right to international solidarity should be classified as a justiciable right. While some experts struggled to imagine a context in which rights holders might be able to claim the right before a court of law, another suggested that the right, for example, might provide a cause of action for a civil society organization that was being targeted by a State for receiving funding from foreign sources, and yet another proposed that it might be mobilized for the protection of those who were being prosecuted for providing aid to migrants.

Implementation of the right to international solidarity

On the basis of the recommendations, the Independent Expert aligned the implementation portion of the draft declaration with that of other international declarations by simplifying and generalizing the positive obligations contained in the right to international solidarity and by eliminating the list of negative obligations, many of which were mirrored in the positive obligations already provided.

The expert group gave careful consideration to the particular global issues and challenges that should be enumerated in the implementation articles, recognizing that, while certain issues should be highlighted, it was important to make it clear that the implementation of the right was not limited only to those particular areas. The Independent Expert emphasized that the selection of issues highlighted reflected the priorities of prior consultations, as well as the need to illustrate linkages between issues that were often overlooked in the discourse.

Presentation to the Human Rights Council

On 6 June 2017, the Independent Expert presented her report, including the draft declaration, to the Human Rights Council.

The States that responded to the presentation overwhelmingly welcomed her work, and many spoke of the value of the draft declaration as a powerful tool for addressing global challenges.

Some States expressed some scepticism regarding the draft declaration, however. They suggested that, while they respected the principle of international solidarity, they were uncertain as to whether it could be understood as rising to the level of a human rights standard.

In response, the Independent Expert emphasized that human rights standards were not static concepts, but that they evolved over time, as a result of the practices and understandings of States, peoples and individuals.

In her report of 2014 to the General Assembly (A/69/366), the Independent Expert explored the potential contributions of international solidarity to the formation of the then-nascent Sustainable Development Goals, seeking to ensure that the Goals would be consistent with universal human rights standards. Now that the 2030 Agenda for Sustainable Development and the Goals have been adopted, it remains essential, as acknowledged in the 2030 Agenda, that the Goals be accomplished in a manner that reflects the responsibilities of all States to live up to their human rights commitments.

The Goals, just as human rights themselves, are interconnected and indivisible. The draft declaration highlights this interconnectedness of human rights, just as it highlights human interconnectedness, calling attention to the fact that none of the Goals can be addressed in isolation.

In the report, the Independent Expert highlighted the relevance of her proposed draft declaration, which had recently been submitted to the Human Rights Council, to three areas of concern for the then-future Goals: overcoming inequality and ending poverty and discrimination; building effective and accountable institutions and peaceful societies; and international cooperation, including strengthening implementation and revitalizing global partnerships.

With regard to the first area of concern, reflected throughout the first 12 Goals, the Independent Expert explained that overcoming inequality and ending poverty was a human rights imperative that was protected in international human rights instruments and noted that the right to international solidarity required States to comply with their obligations in adhering to the international human rights treaties that they had ratified (ibid., paras. 21-22).¹ She also noted that the right to international solidarity called particular attention to marginalized and vulnerable groups that were frequently neglected or not taken into account within the international system.

1. See also A/HRC/26/34, annex, art. 8 (2). ↩

The second area of concern was particularly brought to light through Goal 16, to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels. In relation to that area of concern, the Independent Expert highlighted the manner in which her proposed draft declaration informed the principles of good governance, accountability and participation. She emphasized the responsibility for good governance and accountability that was placed on the duty bearers of the right to international solidarity and the call expressed in her proposed draft declaration that States protect the rights of peoples and individuals to participate fully and freely in decision-making, from the local to the international levels (ibid., paras. 31 and 33).² These principles are similarly reflected in the final version of the draft declaration.

2. See also A/HRC/26/34, annex, art. 9 (3). ↩

With regard to the third area of concern, the Independent Expert highlighted the crucial interplay between global action, international cooperation and the realization of the right to international solidarity. Now that both the draft declaration and the Sustainable Development Goals and its targets have been finalized, she will devote the remainder of the present report to exploring that interplay more fully. 1 See also A/HRC/26/34, annex, art. 8 (2). 2 See also A/HRC/26/34, annex, art. 9 (3). 8/13

In May 2013, the High-level Panel of Eminent Persons on the Post-2015 Development Agenda submitted to the Secretary-General its report, entitled A New Global Partnership: Eradicate Poverty and Transform Economies through Sustainable Development.³ In the report, the High-level Panel identified “five big, transformative shifts” necessary to the achievement of a new global development agenda, describing the fifth, to “forge a new global partnership”, as “the most important transformative shift … towards a new spirit of solidarity, cooperation and mutual accountability that must underpin the post-2015 agenda”.

3. United Nations publication, Sales No. E.13.I.10. ↩

In the same report, the High-level Panel reiterated its vision, contained in the communiqué issued on 28 March 2013, pursuant to its meeting held in Nusa Dua, Bali, Indonesia, of a renewed global partnership “that enables a transformative, people-centred and planet-sensitive development agenda which is realized through the equal partnership of all stakeholders. Such partnership should be based on the principles of equity, sustainability, solidarity, respect for humanity and shared responsibilities, in accordance with respective capabilities.”⁴

4. Available from www.un.org/sg/management/hlppost2015.shtml. ↩

In August 2014, the Open Working Group of the General Assembly on Sustainable Development Goals submitted to the Assembly its report containing its proposed goals (A/68/970 and Corr.1). In the report, the Open Working Group reaffirmed the principles and commitments made in a number of internationally agreed documents and the importance of the Universal Declaration of Human Rights and other international human rights instruments. The authors cited the outcome document of the United Nations Conference on Sustainable Development (Assembly resolution 66/288, annex), in which it had been recognized that each country faced specific challenges to achieve sustainable development and reaffirmed that the commitment to strengthening international cooperation to address the persistent challenges related to sustainable development for all, in particular in developing countries. The Open Working Group acknowledged the need of developing countries for additional resources for sustainable development, and for the mobilization of resources from a variety of sources.

In recognition of those needs, the Open Working Group reaffirmed the commitment, also expressed in the above-mentioned outcome document, to reinvigorating the global partnership for sustainable development and proposed that Goal 17 be to strengthen the means of implementation and revitalize the global partnership for sustainable development.

The Goal was ultimately adopted by the General Assembly, in its resolution 70/1, as part of the 2030 Agenda, with targets relating to finance, technology, capacity-building, trade and systemic issues, the last-mentioned including policy and institutional coherence, multi-stakeholder partnerships and data, monitoring and accountability.

Global partnership for sustainable development

In the 2030 Agenda, it was recognized that the global partnership, to ensure its implementation, must work in a spirit of global solidarity, especially solidarity with the poorest and with people in vulnerable situations (General Assembly resolution 70/1, para. 39). The draft declaration is the formal embodiment of that spirit, giving it substance in a manner consistent with international human rights standards.

The draft declaration foregrounds and builds on the elements of international law that have already laid the groundwork for revitalizing the global partnership for sustainable development. Notably, it draws on, and contributes to, the global effort against climate change, recognizing the importance of the concept of common but differentiated responsibilities both for and beyond that struggle.

Beyond international cooperation, the right to international solidarity requires the deployment of preventive solidarity aimed at proactively preventing and removing the root causes of inequalities between developed and developing countries and the structural obstacles that generate poverty worldwide and at creating an overarching enabling environment in which all human rights can be progressively realized. Such deployment would make it possible to realize the commitment contained in the 2030 Agenda to strengthening the voice and participation of developing countries in international decision-making, norm-setting and global governance (ibid., para. 44).

Preventive solidarity, a constituent element of international solidarity, is essential in achieving both intergenerational and intragenerational solidarity and is a vital component of the duty of States to provide and seek international cooperation and assistance in the implementation of their human rights obligations.

The draft declaration recognizes that, with regard to the implementation of their foreign policy and their bilateral, regional and international agreements and partnerships, States are accountable for the actions of the international organizations of which they are members, in conformity with their international human rights obligations. That recognition not only encompasses the acknowledgment underlined in the 2030 Agenda of the important role and comparative advantage of an adequately resourced, relevant, coherent, efficient and effective United Nations system in supporting the achievement of the Sustainable Development Goals (ibid., para. 46), but also goes beyond it in calling upon States to recognize and fulfil their extraterritorial human rights obligations in all aspects of their foreign policy, including in their efforts to achieve the Goals.

Importantly, the draft declaration provides an understanding of international solidarity that goes well beyond relationships between States. The holders of the right to international solidarity are individuals and peoples, and the duty bearers mainly States, but also some non-State actors (A/HRC/35/35, annex, arts. 5-6). That notion reflects the understanding that a global partnership for human rights and sustainable development must truly be global, not merely international, incorporating the efforts of many stakeholders at all levels and fundamentally driven by the will of the people.

Fundamentally, the draft declaration is an embodiment of the requirement contained in article 28 of the Universal Declaration of Human Rights that States create a social and international order in which all human rights and fundamental freedoms can be realized. A revitalized global partnership for sustainable development is an important component of such an order, one that would enable greater equity at all levels and would seek to give States the tools and resources that they need for the realization of human rights.

In recognition of the key role that resources play in sustainable development, the first five targets of Sustainable Development Goal 17 are concerned with finance. They call for strengthened domestic resource mobilization, including through international support; full implementation of official development assistance (ODA) commitments; mobilization of additional financial resources for developing countries; assistance to developing countries in attaining long-term debt sustainability and the reduction of debt distress; and the adoption and implementation of investment promotion regimes for least developed countries.

States are obligated to mobilize resources for the realization of human rights,⁵ including through international cooperation and assistance.⁶ Meeting ODA commitments is key to fulfilling these obligations, but beyond the mere allocation of funding, ODA and all development financing and resource mobilization, including sovereign debt, must be consistent with human rights principles. It should be effective and transparent, distributed in a manner that is participatory and accountable and targeted to the most vulnerable and those most in need. Furthermore, all development financing and resource mobilization must be accomplished in a manner that guarantees equal access and non-discrimination and that seeks to eliminate barriers to access for traditionally excluded groups. As members of international financial institutions or as individual lenders, States must not impose conditions on borrower States that would lead to retrogression on the fulfilment of human rights (A/HRC/20/23, para. 40).⁷

5. International Covenant on Economic, Social and Cultural Rights, art. 2; Convention on the Rights of the Child, art. 4; and Convention on the Rights of Persons with Disabilities, art. 4.2. ↩
6. Charter of the United Nations, Articles 55-56; International Covenant on Economic, Social and Cultural Rights, arts. 2.1 and 11.2; Convention on the Rights of the Child, art. 4; and Convention on the Rights of Persons with Disabilities, art. 32. ↩
7. See also resolution 70/1, para. 44; art. 18 of the articles on responsibility of States for internationally wrongful acts (resolution 56/83, annex); Committee on Economic, Social and Cultural Rights, general comment No. 8 (1997) on the relationship between economic sanctions and respect for economic, social and cultural rights. ↩

In the draft declaration, States are urged to cooperate with one another to address key development issues while taking into account their interrelationships and the importance of non-discrimination, emphasizing the need to ensure that international agreements and standards around finance are consistent with human rights obligations (A/HRC/35/35, annex, art. 7). It includes a mandate for a human rights-based approach to international cooperation, including in the global response to foreign debt, sustainable development and investment, and a vision of international cooperation that is targeted above all to the primary responsibility of each State to devote the maximum available resources for the implementation of its human rights obligations (ibid., art. 9). It thus provides a framework for ensuring a human rights-based approach to the finance targets for Sustainable Development Goal 17.

Technology and capacity-building

Targets 17.6 to 17.9 are concerned with technology, including enhancing international cooperation on science, technology and innovation promoting technology transfer to developing countries, operationalizing the technology bank and science, technology and innovation capacity-building mechanism for least developed countries, and capacity-building.

Human rights standards require that States not allow global intellectual property regimes to interfere with the dissemination of technology that would enable sustainable development and the realization of human rights. Beyond that, new technology for sustainable development should be developed and disseminated in a manner that is equitable and that takes into particular account the needs of the most vulnerable.

International cooperation should seek to build the capacity of developing countries to fulfil their international human rights obligations and to implement the Sustainable Development Goals, as well as to participate fully and equally in international processes. It should also seek to build the capacity of those who have traditionally been excluded from political and development processes, to enable them to participate in those processes and gain access to social benefits without discrimination.

Preventive solidarity includes a vision of shared technological endeavours aimed at finding a common solution to common problems and of enabling each State to fulfil its human rights obligations. The human rights-based approach to international cooperation contained in the draft declaration includes technological exchange in collective action to address poverty, hunger, preventable deaths and other global challenges that are also a part of the 2030 Agenda, a recognition of the need to build the capacities of both developing countries and traditionally marginalized groups and a call for structures of global governance that enable the capacity of all countries to defend human rights at the global level (ibid., art. 2).

The next set of targets, 17.10 to 17.12, deals with trade. The targets emphasize the need for a universal and equitable multilateral trading system, increasing the exports of developing countries, and the realization of market access for least developed countries.

Human rights advocates have long sought to call attention to the democratic deficits in the international trade regime and have questioned whether this regime is ideally designed to enable the realization of human rights.⁸ They have noted the manner in which economic power dictates negotiating strength, both inside and outside the World Trade Organization, and the challenges created when developing countries lack the capacity to participate equally in trade negotiations. They have questioned the primacy of economics in our understanding of development and have emphasized that gains from trade must be measured in terms of capacity for individual self-realization, rather than aggregate economic growth.

8. See, for example, E/CN.4/2005/41, sect. II.C, and E/CN.4/Sub.2/2004/17. ↩

The right to international solidarity again emphasizes that international action with respect to trade must apply a human-rights based approach. That is the only way to ensure that benefits from trade are distributed in a manner consistent with human rights principles and that leads to poverty alleviation and development that is truly sustainable. In an era that has seen a backlash against globalization spreading around the world, the draft declaration provides an alternative vision of positive engagement in the global community.

The final set of targets under Goal 17 is directed at systemic issues, including policy coordination and coherence, respect for policy space, multi-stakeholder partnerships and data, monitoring and accountability.

Maintaining policy coherence for sustainable development should have the goal of ensuring that economic and political mechanisms and institutions are in line with human rights standards. The international community should act, directed by the considerations and principles set out throughout the present section, to ensure coherence between the international legal regimes for trade, finance, investment and governance and the norms and standards for labour, the environment, human rights, equality and sustainability.

In the 2030 Agenda, the General Assembly recognized the need for international financial institutions to support the policy space of each country, in particular developing countries (resolution 70/1, para. 44). That obligation must apply to the international system as a whole. No structures or relationships at the international or bilateral level should operate to restrict the capability of States to act for the realization of human rights.

As noted above, true sustainable development cannot be a purely State-based or State-driven process. On the contrary, it must be person-centred and involve the participation and efforts of a vast range of stakeholders. Private actors have enormous impacts on human rights and sustainable development and therefore bear a responsibility to respect human rights.

A human rights-based approach to data, monitoring and accountability respects the principles of participation, data disaggregation, self-identification, transparency, privacy and accountability.⁹ It also entails measuring development in a manner that is broader and more people-centred than gross domestic product, seeking to capture whether economic growth is truly meeting the needs and rights of the people in a manner that is equitable and sustainable.

9. Office of the United Nations High Commissioner for Human Rights, “A human rights-based approach to data: leaving no one behind in the 2030 development agenda — guidance note to data collection and disaggregation”, available from www.ohchr.org/Documents/Issues/HRIndicators/GuidanceNoteonApproachtoData.pdf. ↩

In grounding all international action in human rights, the draft declaration generates policy coherence. In emphasizing the mutual necessity of solidarity and sovereignty, it preserves policy space. In recognizing that duty bearers include some non-State actors, it provides a framework for effective and accountable multi-stakeholder partnerships. By setting out a vision of a human rights-based approach to international cooperation, it enables the creation of an international system that addresses those systemic issues in their entirety.

The Independent Expert recalls coming away from the five regional consultations with an even firmer conviction regarding the feasibility and enforceability of the right to international solidarity as outlined in the current draft declaration on the right to international solidarity (A/HRC/35/35, annex). The regional consultations confirmed that many States already had the functioning institutions and agencies necessary to implement the right to international solidarity. The Independent Expert notes with interest that the output of the regional consultations echoed the text of Human Rights Council resolution 35/3, adopted on 22 June 2017, in which it was recognized that “there is an overwhelming manifestation of solidarity by States, individually and collectively, by civil society, by global social movements and by countless people of good will reaching out to others, and that this solidarity is commonly practised at the national, regional and international levels.

It thus appears, by all indications from the five regional consultations and the country visits of the Independent Expert, that those working on the ground do possess the knowledge and experience to make the right to international solidarity work in practice. It is also evident from the experiences narrated by national and regional actors that, although it may take a while to surmount some obstacles, the right can be effectively implemented in culturally diverse ways that do not in any way diminish the standards outlined in the draft declaration.

When recognized for what it is outside of political rhetoric and considerations, the draft declaration on the right to international solidarity must be fully considered as crucial to addressing both the impacts of present-day global challenges, including the refugee and migration crises and the unabated horrors of terrorism and trafficking in persons. Notably, the draft declaration would anchor global partnerships in which international commitments would be nurtured and advanced. It would thus be instrumental to the successful completion of the 2030 Agenda.

As States seek to revitalize the global partnership for sustainable development, they must ground that partnership in human rights law and in respect for human rights principles, in particular equality, non-discrimination, participation, accountability, transparency, attention to marginalized and disadvantaged groups and the rule of law. In setting out a vision for a truly human rights-based approach to collective action at all levels, the draft declaration provides a basis for a partnership that is truly global and development that is truly sustainable.