The Delegation of Cuba to the 61 CHR invites to the first meeting of the open-ended informal consultations on Draft Resolution 15/04/05

Resolution presented by cuba about the use of mercenaries as a means of violating human rights and  impeding the expertise of the right of peoples to self-determination 4/04/05

“Question of detainees in the area of the United States Naval Base in Guantánamo”

Friday 15 April 2005

From 15:00 to 18:00

Room XXIII

Take 1 14 April 2005

CUBA 61 CHR Item 3

Draft Resolution

"Question of detainees in the area of the United States Naval Base in Guantánamo”

The Commission on Human Rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and fundamental freedoms through international cooperation,

Aware that all persons are entitled to respect for their human rights as set forth in the Universal Declaration of Human Rights, and bearing in mind that several of these rights do not prescribe, and that their enjoyment cannot be restricted under any circumstances,

Recalling the duty of all States to respect and comply with their obligations under international instruments, including those relating to human rights, to which they are parties,

Recalling also General Comment 31 of the Human Rights Committee, adopted at its 2187 meeting on 29 March 2004,

Recalling the request made to the Government of the United States on 25 June 2004, by four thematic procedures mandate holders of the Commission, with the objective of visiting the persons detained on grounds of terrorism, including in Guantánamo Bay,

Taking into account the declaration made on 4 February 2005 by six special procedures mandate holders of the Commission, reaffirming their serious concern over the situation of detainees at the Naval Base in Guantánamo, despite some positive developments which have taken place on the issue for the last few months,

Taking into account also that a significant number of governments and parliaments from all over the world have expressed their concern in this regard, among them the European Parliament, that in its resolution on Guantánamo adopted on 28 October 2004, called on the United Sates administration to allow an impartial and independent investigation into allegations of torture and mistreatment for all persons deprived of their liberty in U.S. custody,

1. Requests the Government of the United States to authorize an impartial and independent investigation by the relevant special procedures of the Commission on Human Rights, on the situation of detainees at its Naval Base in Guantánamo;

2. Requests also the Government of the United States- for such purposes - to authorize the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, to the Special Rapporteur on Torture, to the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and to the Special Rapporteur on the independence of judges and lawyers, to visit the detention centers which have been established in that Base;

3. Requests the United Nations High Commissioner for Human Rights to prepare and submit to the 62nd Session of the Commission, a report on the situation of the detainees at the U.S. Base in Guantánamo, based on the results of the findings to be conducted therein by mandate holders of the afore-mentioned special procedures;

4. Decides to continue the consideration of this issue at its forth-coming session.

Up

UNITED
NATIONS
Economic and Social Council

Distr.
LIMITED
E/CN.4/2005/L.6
4 April 2005
Original: ENGLISH

COMMISSION ON HUMAN RIGHTS
Sixty-first session
Agenda item 5

THE RIGHT OF PEOPLES TO SELF-DETERMINATION AND ITS
APPLICATION TO PEOPLES UNDER COLONIAL OR ALIEN
DOMINATION OR FOREIGN OCCUPATION

Algeria, Bangladesh*, Burundi*, Cameroon*, Congo, Côte d’Ivoire*, Cuba,
Democratic People’s Republic of Korea*, Democratic Republic of
the Congo*, Ecuador, Eritrea, Ethiopia, Guinea, Libyan Arab
Jamahiriya*, Qatar, Madagascar*, Mauritania, Russian Federation, Syrian Arab Republic, Sudan, Swaziland, Togo, Tunisia*, Uganda*, United Republic of Tanzania*, Viet Nam*, Zambia* and Zimbabwe: draft resolution

2005/… The use of mercenaries as a means of violating human rights and
                 impeding the expertise of the right of peoples to self-determination

  The Commission on Human Rights

Recalling all of its relevant resolutions, in which, inter alia, it condemned any State that permitted or tolerated the recruitment, financing, training, assembly, transit and use of mercenaries with the objective of overthrowing the Governments of States Members of the United Nations, especially those of developing countries, or of fighting against national liberation movements, and recalling also the relevant resolutions and international instruments

* In accordance with rule 69, paragraph 3, of the rules of procedure of the functional commissions of the Economic and Social Council.

GE.05-11940 (E) 050405

adopted by the General Assembly, the Security Council, the Economic and Social Council and the Organization of African Unity, inter alia the Convention of the Organization of African Unity on the Elimination of Mercenarism in Africa, as well as the African Union,

Reaffirming the purposes and principles enshrined in the Charter of the United Nations concerning the strict observance of the principles of sovereign equality, political independence, territorial integrity of States, self-determination of peoples, the non-use of force or threat of use of force in international relations and non-interference in affairs within the domestic jurisdiction of States,

Reaffirming also that by virtue of the principle of self-determination, all peoples have the right to determine freely their political status and to pursue freely their economic, social and cultural development,

Reaffirming further the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations,

Alarmed and concerned about the danger which the activities of mercenaries constitute to peace and security in developing countries, particularly in Africa and in small States,

Deeply concerned about the loss of life, the substantial damage to property and the negative effects on the policy and economies of affected countries resulting from mercenary international criminal activities,

Extremely alarmed and concerned about recent mercenary activities in Africa and the threat they pose to the integrity and respect of the constitutional order of these countries,

Convinced that, notwithstanding the way in which mercenaries or mercenary-related activities are used or the form they take to acquire some semblance of legitimacy, they are a threat to peace, security and the self-determination of peoples and an obstacle to the enjoyment of human rights by peoples,

  1. Takes note of the report of the Special Rapporteur on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination, Ms. Shaista Shameem (E/CN.4/2005/14) commends the Special Rapporteur for her valuable work in the fulfilment of her mandate;

  2. Reaffirms that the use of mercenaries and their recruitment, financing and training are causes for grave concern to all States and violate the purposes and principles enshrined in the Charter of the United Nations;

  3. Recognizes that armed conflicts, terrorism, arms trafficking and covert operations by third Powers, inter alia, encourage the demand for mercenaries on the global market;

  4. Urges once again all States to take the necessary steps and to exercise the utmost vigilance against the menace posed by the activities of mercenaries, and to take legislative measures to ensure that their territories and other territories under their control, as well as their nationals, are not used for the recruitment, assembly, financing, training and transit of mercenaries for the planning of activities designed to impede the right to self-determination, to overthrow the Government of any State, or dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the right to self-determination of peoples;

  5. Requests all States to exercise the utmost vigilance against any kind of recruitment, training, hiring or financing of mercenaries by private companies offering international military consultancy and security services, as well as to impose a specific ban on such companies’ intervening in armed conflicts or actions to destabilize constitutional regimes;

  6. Calls upon all States that have not yet done so to consider taking the necessary action to sign or ratify the International Convention against the Recruitment, Use, Financing and Training of Mercenaries;

  7. Welcomes the cooperation extended by those countries that received a visit by the Special Rapporteur and the adoption by some States of national legislation that restricts the recruitment, assembly, financing, training and transit of mercenaries;

  8. Invites States to investigate the possibility of mercenary involvement whenever and wherever criminal acts of a terrorist nature occur;

  9. Condemns recent mercenary activities in Africa and the threat they pose to the integrity and respect of the constitutional order of these countries and the exercise of the right to self-determination of their peoples and commends the Governments of Africa on their collaboration in thwarting these illegal actions;

  10. Calls upon the international community, in accordance with its obligations under international law, to cooperate with and assist the judicial prosecution of those accused of mercenary activities, in transparent, open and fair trials;

  11. Decides to end the mandate of the Special Rapporteur on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination and to establish a working group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, made up of five independent experts, one from each regional group, for a period of three years;

  12. Requests the working group to meet for five working days before the next session of the Commission in fulfilment of the following mandate:

  (a) To elaborate and present concrete proposals on possible new standards, general guidelines or basic principles encouraging the further protection of human rights, in particular the right of peoples to self-determination, while facing current and emergent threats posed by mercenaries or mercenary-related activities;

 (b) To seek opinions and contributions from Governments and intergovernmental and non-governmental organizations on questions relating to mandate;

 (c) To monitor mercenaries and mercenary-related activities in all their forms and manifestations in different parts of the world;

  (d) To study and identify emerging issues, manifestations and trends regarding mercenaries or mercenary-related activities and their impact on human rights, particularly on the right of peoples to self-determination;

  (e) To monitor and study the effects of the activities of private companies offering military assistance, consultancy and security services on the international market on the enjoyment of human rights, particularly the right of peoples to self-determination, and to prepare draft international basic principles that encourage respect for human rights on the part of those companies in their activities;

  13. Also requests the working group to continue the work already done by the previous Special Rapporteurs on the strengthening of the international legal framework for the prevention and sanction of the recruitment, use, financing and training of mercenaries, taking into account the proposal for a new legal definition of a mercenary drafted by Mr. Enrique Bernales Ballesteros in paragraph 47 of his report to the Commission at its sixtieth session (E/CN.4/2004/15);

  14. Further requests the working group to report annually on the progress made in the fulfilment of its mandate to the Commission and to the General Assembly;

  15. Expresses its appreciation to the United Nations High Commissioner for Human Rights for convening the third meeting of experts on traditional and new forms of mercenary activities as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, and takes note of the report of the meeting (E/CN.4/2005/23);

  16. Requests the Office of the High Commissioner, as a matter of priority, to publicize the adverse effects of mercenary activities on the right of peoples to self-determination and, when requested and where necessary, to provide advisory services to States that are affected by these activities;

  17. Requests the working group to take into account, in the discharge of its mandate, that mercenary activities are continuing to occur in many parts of the world and are taking on new forms, manifestations and modalities, and in this regard requests its members to pay particular attention to the impact of the activities of private companies offering military assistance, consultancy and security services on the international market on the enjoyment of human rights by everyone and every people and, in particular, on the exercise of the right of peoples to self-determination;

  18. Urges all States to cooperate fully with the working group in the fulfilment of its mandate;

  19. Requests the High Commissioner for Human Rights to provide the working group with all the necessary assistance and support for the fulfilment of its mandate, including through the promotion of cooperation between the working group and other components of the United Nations system that deal with countering mercenary-related activities;

  20. Requests the working group to consult States and intergovernmental and non governmental organizations in the implementation of the present resolution and, in its report to the Commission at its sixty-second session, to report its findings on the use of mercenaries to undermine the enjoyment of human rights and to impede the exercise of the right of peoples to self-determination and to formulate specific recommendations thereon;

  21. Decides to consider at its sixty-second session the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination under the same agenda item;

  22. Recommends the following draft decision to the Economic and Social Council for adoption:

“The Economic and Social Council, taking note of Commission on Human Rights resolution 2005/… of … April 2005, endorses the Commission’s decision to establish a working group on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination, to be composed of five independent experts, one from each regional group, to meet intersessionally for a period of three years, with the following mandate:

  “(a) To elaborate and present concrete proposals on possible new standards, general guidelines or basic principles encouraging the further protection of human rights, in particular the right of peoples to self-determination, while facing current and emergent threats posed by mercenaries or mercenary-related activities;

  “(b) To seek opinions and contributions from Governments, intergovernmental and non governmental organizations on questions relating to its mandate;

  “(c) To monitor mercenaries and mercenary-related activities in all their forms and manifestations in different parts of the world;

  “(d) To study and identify emerging issues, manifestations and trends regarding mercenaries or mercenary-related activities and their impact on human rights, particularly on the right of peoples to self-determination;

  “(e) To monitor and study the effects of the activities of private companies offering military assistance, consultancy and security services on the international market on the enjoyment of human rights, particularly the right of peoples to self-determination, and to prepare draft international basic principles that encourage respect for human rights on the part of those companies in their activities;

   The Council also endorses the request to the working group to report annually to the Commission and the General Assembly.”

VOTING BY COUNTRY ON US-EU RESOLUTION

FOR (21): Armenia, Australia, Canada, Costa Rica, Finland, France, Germany, Guatemala, Honduras, Hungary, Ireland, Italy, Japan, Mexico, the Netherlands, Romania, Saudi Arabia, South Korea, the Ukraine, the United Kingdom, United States,

AGAINST (17): China, Congo, Cuba, Egypt, Ethiopia, Eritrea, Guinea, India, Indonesia, Kenya, Malaysia, Nigeria, Qatar, Russia, South Africa, Sudan, Zimbabwe.

ABSTENTIONS (15): Argentina, Brazil, Burkina Faso, Bhutan, Ecuador, Gabon, Mauritania, Nepal, Pakistan, Peru, the Dominican Republic, Sri Lanka, Swaziland, Togo, Paraguay.
 

(Minrex)