UN Special Procedures System is “Designed to Be Ineffective”

Conectas Human Rights • In an analysis of the recent street demonstrations, commented by Sara Burke in this edition, researchers at Friedrich Ebert Stiftung (FES) and Columbia University came to a number of interesting conclusions. One was that in the course of the protests, grievances were expressed mainly in terms of economic justice rather than in terms of rights, including the demand for housing. Another was that the profile of the protesters had changed significantly: the proportion of ‘traditional’ protesters (unions, NGO activists, etc.) gave way to people who were not previously politically engaged. This was especially seen in the protests, with demonstrators ranged against the “lack of democracy and ‘real’ representation”.

Raquel Rolnik • These protesters are basically raising an important question: what is the best model for providing political representation for citizens? This is because, the world over, the model of representative democracy is totally in the hands of the economically powerful. While globalised capitalism becomes the predominant language of economic relations between peoples – and in the realm of capitalism the owners of the money are naturally those who give the orders – the power of States to control this process is increasingly restricted. In the latest phase of capitalism – the growing hegemony of finance, financial capitalism, or financialisation of capitalism – this is even more blatant. It seems to me therefore that the protests taking place worldwide, despite their narrow agendas and the fact that they have to be seen from the historical perspective of each country involved, have clearly shown that this particular model [democratic rule of law] is exhausted in terms of both political representation and as a model of economic organisation.

However, this is a model of representation that has been formulated, developed and operated over centuries. Utopias which resisted this model, such as those of socialism and communism, were also tried out and, today, we already have strong means for criticising them. Our current models of representative democracy took centuries to develop and be experienced. Thus it will also take long for new utopias to be formulated and matured through real practices. The idea of a different kind of model of representation for society will not come about overnight… it will take quite a time.

Conectas • In this scenario, do you think that the language of rights is still legitimate? Can the language of rights bring about social justice effectively? You spoke, for example, about the State’s role being constrained by a world where money and finance predominate – and, in the language of human rights, the State is always the responsible party. Is that correct?

R.R. • I have three main impressions gained from my experience as UN Special Rapporteur over these past six years.

Firstly, the construction of human rights runs parallel to the construction of the idea of the democratic rule of law. At present, we have a crisis with the democratic rule of law as an ideal model for representing citizens. The question of human rights is bound up with this, it is an integral part of it. One of the problems is precisely the loss of power by States – and the State is basically the responsible for human rights protection.

The second dimension that seems to be at risk as far as human rights are concerned is that these rights – and the way they were formulated at the time of the Universal Declaration, their covenants and their subsequent evolution – are very much locked into liberal thought: the right of a human being as an individual, the power of the individual. It is almost as if the right were the private property of the individual. This relates strongly to the question of private property, and with the model of private property in the capitalist system. It is clear that economic, cultural and social rights are permanently straining this, by affirming collective, common rights, but individual freedom, the power to vote, etc., is indeed structured around the idea of the individual – a fundamental pillar sustaining this concept of the democratic rule of law.

In practice human rights, in common with all the other issues between States at international level, are shot through with geopolitics. On many occasions during my work it became crystal clear to me that North-South geopolitics was of greater importance than the issues under discussion. Content was totally irrelevant. What was vastly more important was how countries aligned themselves, with whom, or against whom. There are, for example, countries or groups of countries in the UN Human Rights Council, that say “no” to everything. In view of the historical, ideological and political hegemony that Europe and North America have exerted in global terms – even extending ideologically to the field of human rights (the main international NGOs come from there, the main action starts there, the formulas and the discourse in defence of human rights originate there) – the reaction of the South is to be against the North. But, reacting against the North does not mean that the South is anti-human rights! This duality could constantly be observed in the Human Rights Council: dominant, hegemonic countries versus the South. In fact, with the economic crisis in Europe, and with the emergence of new powers (e.g. China), that particular brand of geopolitics is over and done with, although some of the Brics countries currently display ‘imperialist’ attitudes, reproducing in African markets, for example, exactly what the Northern countries have done in the past in Latin America. But this South resistance to the North still exists: let’s face it, imperialism and colonialism were not a fairy tale; they were very real, exerting a powerful influence on the constitution of nation States. Human rights ended up becoming a hostage to all this.

But there is also another side to it. While working as Special Rapporteur on Adequate Housing, I realised how rights can also be used to resist this economic order, and the very concept of the hegemony of individual property and liberalism. My views were forged over many years of exposure to my own special subject – the right to adequate housing. This is an area that encompasses economic, social and cultural rights. When I was involved in the rights to food, water, poverty and health (I had the closest contact with their respective Rapporteurs) I soon realised that this was also true for them [i.e. rights used for resisting the economic order]. Communities do indeed resist. My final task, drafting the Guiding Principles on Security of Tenure for the Urban Poor, led me to deeply question the idea that private property is the safest type of property – and one which people should aspire to – leading to imagine a ‘plurality’ of forms of ownership from the legal standpoint… A plurality of ways in which individuals relate to territory, also leading, philosophically speaking, to a plurality of forms of social and political organisation.

Conectas • Do you think that, in this scenario, the right to the city (??not yet a component of human rights) would be one way of combining this ‘plurality’ of needs?

R.R. • The ‘right to the city’ is a notion that has been researched in Sociology and Political Science since the days of [Henri] Lefèbvre, and given a boost in the works of David Harvey and Peter Marcuse, who gave contemporary meaning to the idea of the right to the city. From the point of view of human rights, one of the leading civil society networks, the Habitat International Coalition, which has strong links with social movements and NGOs in the area, has insisted on defending the right to the city as a human right.

I have spent six years working on housing rights and, from my point of view, the concept of the right to adequate housing involves precisely that: the right to the city. If we read the formal instruments issued since the Universal Declaration on Human Rights, the International Covenant on Economic, Social and Cultural Rights, and especially the UN General Comments, the set of thematic reports and resolutions submitted by Miloon Kothari, and my own subsequent work, we can easily see that the concept of ‘adequate’ housing is not restricted to the right to a house. It is not a matter of having a place with a roof and four walls, but a stake in the territory which can serve as a base for accessing other rights: the right to education, the right to health, the right to protection, the right to freedom of expression, the right to non-discrimination. It is, in short, the right to the city, to the urban space. It is of course also the field of rights of the groups most vulnerable to human rights violations. Within these groups there are the rights of those living in informal squatter settlements, the favelas, the homes of the urban poor, where ambiguity exists with regard to these people’ status in the city, and which experience the worst violations. But abuses are not confined to these groups. We have, for example, recently witnessed a mortgage, real-estate crisis during which individual freedom was suddenly exchanged for total and absolute insecurity for many Spanish, Irish and American families who lost their homes due to a rash of foreclosures… and ended up homeless on the street.

Conectas • Your time as UN Special Rapporteur was marked by something very interesting: human rights organisations criticised the question of selectivity by Rapporteurs – especially in the Human Rights Council. Moreover, you visited, as part of your job, the United States, the United Kingdom, where you were…

R.R. • Yes, attacked!

Conectas • Can you say a few words about that experience?

R.R. • The strategy I adopted was intentional. It was not by accident. From the beginning, I was fairly certain I should try, in my role as UN Special Rapporteur, to strike a balance not only between regions, by visiting countries in different regions (Western Europe, Asia, Africa, Latin America, North America, etc.,), but also between developed and less-developed countries. Incidentally, I would have liked to have done more in Africa and Asia than I was able to.

That was my initial strategy… but what happened? At the beginning of my mandate, just my luck, the real-estate/mortgage crisis burst in the US. I was appointed to the job in 2008, and the crisis erupted in late 2008, early 2009. My immediate idea was to focus on the United States, where thousands of people were being thrown onto the streets. By closely watching and studying events in the United States, I started monitoring the financial crisis and its effect on the right to adequate housing. From that I discovered the world. Indeed, I discovered that the hegemonic model had been imposed on the entire planet, and that it was creating crisis after crisis in different countries as it rolled out from its original site in the US. At the same time, I felt it was important for me to go to England, because England and the United States were the chief formulators of this hegemonic model of commoditisation, of housing financialisation.

I concentrated on this theme of ‘financialisation of housing’ precisely because this was in the eye of the crisis. This was important to my job as rapporteur. And it was interesting to see that, to an extent, the issue affected the North-South equilibrium in the Human Rights Council. It was particularly useful for me because it gave me a much broader view of the entire process.

But so far – still debating the Resolution to be voted by the Council, renewing the mandate of the Housing Rapporteur and commenting on security of tenure – my impression is that people are still acting as if the housing problem were confined to poor countries. In other words, simply a question of countries having the cash to build more houses.

My experience was extremely valuable. However, I do think that while the UN Special Procedures System is important, it is in my view a totally controlled system. It is a system designed to be ineffective. It is a system designed to avoid being universally known. It is specifically organised to avoid generating widespread public debate on the issues. The whole idea is to keep it confined within the human rights circle.

Conectas • “Controlled” meaning what precisely?

R.R. • To keep everything within the confines of the Human Rights Council, of the human rights NGOs, of the human rights groups. The human rights language itself… reports written in a virtually incomprehensible code. For example, the phrase ‘interactive dialogue’ is constantly heard, but has nothing interactive about it, and least of all ‘dialogue’. Everything in the Council is preordained… you can only read what has already been written… there is no exchange of views, no interaction, no dialogue.

I was all the time convinced that it was vital to break out of this straightjacket, this controlled environment, to go into the streets, to win the hearts and minds of ordinary people. So I adopted a deliberate strategy, selecting a number of issues and themes that were already on the public agenda, and working on them to try to give them some form of human rights meaning and appeal. I worked with mega-events and housing rights, and I think that overall the strategy paid off in terms of what we were able to do with the media worldwide – and with the financial crisis. I had zero space (for obvious reasons) in the media for talking about the financial crisis, but I did make an effort to try and broaden it, producing a range of materials, guides, booklets, translating brochures, creating a new website, and so on. In this respect, my official ‘country visit’ to England – which turned out to be highly controversial – was an eye-opener in that I, as UN Special Rapporteur on the Right to Adequate Housing, was suddenly cast into the limelight and became known the world over. Before my visit, nobody knew this subject even existed… and people certainly began to take an interest when I landed there. I was not too happy having to face personal attacks and a certain amount of aggression from the press. But I think that, on the whole, the visit was highly positive.

Conectas • Do you think that this reception in England had something to do with your being from the South?

R.R. • Absolutely. There was a combination of different factors. The first big problem was that from the very first minute of my visit, and without any encouragement from me, I gained a very high media profile.

Statements are always released to the international press when a Rapporteur is about to pay an official visit somewhere: “Rapporteur so-and-so will be visiting such-and-such country to examine the Right to Housing.” But the media normally keep quiet… and the Rapporteur enters the country totally incognito.
The day after my arrival in England the tabloids screamed “the UN is sending somebody to investigate the bedroom tax”*, a major talking point on the public agenda at the time. Obviously I had not gone there to investigate any bedroom tax… this was not the goal of my visit… But from my very first day I was thrown into, and remained in, the uncomfortable spotlight. I gave no interviews to the press until my final statement, but by then all the press were talking about it, given that it was an extremely expensive political issue for the UK government, and it got a lot of coverage as a result.

The Government’s strategy was clearly to shoot the messenger. And how was this to be done? Historical discrimination came floating to the surface. Number one: the fact that I am a woman and “a Brazilian woman” at that; Number 2: Brazilian and Latin American. “How dare a Latin American, Brazilian, woman come and talk about housing policy in a country like England, having just come straight from the slums of Brazil?” Discrimination in spades! Then an ideological clash: people among the neoliberal conservative groups saying that I was a left-winger. I was even accused on being Jewish! I was discredited because my grandparents disappeared in the holocaust! I was truly shocked: Brazilian, Jewish and sympathies towards African-Brazilian religious rites… suggesting ‘second-class folk, black, slave’. A massively colonialist view of the world.

Luckily, I had a lot of support from civil society in England. But I have to say that all this made a very strong impression on me. I had never come across this kind of reaction in any of the other 10 countries that I had visited.

Conectas • Still on the subject of the job of Rapporteur, and especially its relationship with civil society, how do you think the mechanism for receiving the grievances of civil society helps a Rapporteur to come to a decision following an investigation?

R.R. • We have a very serious problem in the system. There is a blockage. We were only permitted to operate when we had received formal complaints containing all the information (as always required), and in the English language.

Why were we unable to operate like that? Basically because of a human resource problem in the Office of the UN High Commissioner for Human Rights. What do they have available in terms of human resources for working with the Rapporteurs? At best, one official per Rapporteur. The Rapporteurs, like me, go around trying to set up projects, as if we were an NGO, in order to obtain more visibility and therefore more resources. I have a team here at the University to provide support to the Rapporteur, currently aided with funding from the Ford Foundation today and, at other times, from the Germans. You cannot work with only one assistant. Impossible. The employee is pressed for time: he or she has to prepare the country visits, has to draft visit reports, help with thematic reports, and so on. There is no time to investigate complaints or allegations. And there are language limitations: typically, [these officials] are highly qualified individuals who speak English and at least one other language, but none of them speak all the languages on earth.

We have a problem of response capacity. I get complaints, mainly because the Rapporteur has begun to be better known, at least five times a day (every day!), from different places, in different languages??. I get documents in Russian, Arabic, Portuguese. The latter basically because I am a Portuguese-speaking Brazilian, but it is obviously not possible for me to deal with everything.

Only international and Anglophone NGOs that operate within this system are able to break through the
blockade and reach the Rapporteurs. This is a very serious problem.

Conectas • Once you have decided to organise a country visit, how do you relate to local civil society? Do you establish contact with organisations?

R.R. • That is a very important point. We learned plenty over time. Every country visit has two agendas. The first is organised entirely by the government of the country concerned, in response to what we say we wish to visit that town or city hall, talk to this or that Ministry, that Secretariat, and so on. Then we have a parallel agenda, unknown to the government, involving contact with civil society.

You might ask how the second agenda is organised, and by whom? Formally, we seek to make contact with human rights institutions, especially those that are in accordance with the Paris principles, a good benchmark. They also sometimes help us find particular cases and situations, as well as other institutions.

In addition, we usually try to locate civil society institutions working on the right to housing in the country we are visiting. We make contact with them and ask them first to organise a program for us, always keeping in mind the short time available when planning the number of meetings and, secondly, to accompany us on field visits. It is essential that the agenda is not confined to meetings. It should allow time for us to meet people in the community. Normally, these latter are supported by civil society organisations working on human rights. The best country visits we experienced were those where civil society was organised on a countrywide basis and therefore able to open up discussion spaces for everyone, call public hearings, etc. In the United States the Legal Clinics are an amazing innovation, collecting and transcribing testimonies from people. So when we arrived in each city, we were presented straightaway with a bundle of written testimonies.

The main thing is to prepare well for a visit: the more active the civil society groups are, the better the country visit. Secondly, it is vital to follow up. If there is an organised civil society this occurs naturally. But if civil society is nonexistent, you can have a good country visit, but followed by virtually nothing.

We had that impression on a number of occasions. In Rwanda, for example. I went to the country, the visit was important, we did what we could, but still I am unaware of what is likely to happen as a result, if anything. This is a good example of the problem. It is a country where no organised civil society exists and nobody is working on the right to housing issue. This is understandable. We are talking about a post-genocide situation. Not easy. Totally different from the United States or Argentina, incredibly efficient from the viewpoint of civil society organisation and follow-up. These are just two examples, but there are plenty of others too.

Some of my missions focused on the subject I was working on: the financialisation agenda. I undertook others because I wanted to explore other themes, such as mega-events, climate change, and so on. Other missions were generated by the agenda preordained by the Office of the UN High Commissioner for Human Rights. Other themes came up because the UN High Commissioner or some other UN agency needed someone to investigate them. This was extremely important. Anyway, I succeeded in developing strong links with the entire humanitarian and post-disaster reconstruction sector. I worked a lot with NGOs and the UN offices operating in these sectors. My story began in Haiti and continued through Israel and Palestine. In due course I forged strong links with the humanitarian/post-disaster sector. It was with the ‘humanitarian’ NGOs that I reflected and discussed a part of the Guiding Principles on Security of Tenure. It goes without saying that NGOs are crucial in this context, but they cannot be everywhere… involved in every situation.

Conectas • One last question, related to the street demonstrations and the perception that civil society, legitimacy and representativity of human rights organisations are being questioned, partly because the existing mechanisms are so difficult to use…

R.R. • The mechanisms are very formal, controlled, coded… and using codes, to my mind, represents exclusion.

Conectas • Yes. It is for that reason and because the recent protests are addressing the problems in other, different terms – focusing on social justice as opposed to rights –and these protests are not organised by trade unions or social movements. My question therefore is: what place is there, in civil society, for the human rights movement? Is it going to be relegated to a complementary role?

R.R. • I am only keeping abreast of a few movements. Those that deal robustly with the themes of ‘right to housing’ and ‘right to the city’. These ended up arriving on my desk as Rapporteur.

It is true that some human rights NGOs have also begun to occupy some of these spaces, translating and recycling their own agendas, drawing on what is happening in the streets. In Brazil, for example, there are several organisations. I can give you an example: that of the NGO Justiça Global (Global Justice), an organisation closely linked to and supportive of the demonstrations and movements. It is an example of an organisation that has rethought its role and its place in what is happening here and now. Turkey also provides an example: NGOs working on the right to housing have staged well-attended protests, and continue using, as far as possible, all available means to draw attention to the subject. We Rapporteurs also seek to respond to the demonstrators’ concerns and take a view on the events as they unfold. The problem is that the human rights universe is full of NGOs: from corporate social responsibility foundations that have absolutely nothing to do with human rights, to more specialised NGOs. I think what will happen to them, and to the previously-existing social movements, depends essentially on these NGOs and movements recycling and repositioning themselves in the new context.

There is no doubt that there is much debate about forms of representation, which includes discussing the very civil society organisations. Not a shadow of doubt that the Trade Union Movement is in deep crisis. The social movements in Brazil, including the one I have been interested in since the late 1970s, early 80s – the housing movement – are virtually extinguished. A new housing movement has emerged.

And why? Brazil’s historical cycle has something to do with it. I believe that the entire scenario derives from the fact that social movements and unions, while being constructed, were at the same time constituting the new political parties (e.g. the PT, PCdoB, PSB) that emerged from the re-democratisation process in Brazil. These parties took hold of the inclusion agenda and – due to the historic evolution of the democratisation process in the country – failed to break with both the prevailing political logic – called by many PMDBismo – and with the traditional power structures, because they were forced into establishing coalitions with these in order to govern. As a result, progress was certainly made on the inclusion, income distribution agenda, etc., but it was all about ‘inclusion via consumption’. The parties failed to think in terms of a much broader question, precisely the right to the city, the public dimension, good quality public services, good quality public amenities. Worse still, the social movements embraced this agenda and are now an integral part of this triumphant hegemonic political scheme.

A new generation, with young people not even born in the 1980s, has already started another trajectory, another story. It is a story emerging from different circumstances and addressing different issues. This is all part of a historic cycle. I see it as very positive. Hangovers from the past need to be reassessed, recycled and redirected to new horizons. When and how to do this is a whole new discussion. It will certainly not happen as a result of the forthcoming elections in October 2014. What we have there is ‘more of the same’ (i.e. the same old coalitions and models). But I do believe that [the protest] movement is an interesting and important one that, though very specific, finds echoes around the world.