A/HRC/33/40
they could not attain in an open political process”,20 and “if there ever was a one-sided
dispute resolution mechanism that violates basic principles, this is it.”21
III. From the responsibility to protect to the responsibility to act
13.
The notion of the responsibility to protect 22 was formulated at the 2005 World
Summit. Theoretically it has the potential, depending how it is interpreted and applied, to
reaffirm the duty of each State to protect the population under its jurisdiction from internal
and external dangers by the adoption of preventive and curative policies to counteract
structural violence caused by State and non-State actors. On the other hand, a narrow
interpretation of the responsibility to protect as a pretext to allow foreign intervention in the
internal affairs of States poses dangers signalled at the General Assembly debate in July
2009, which revealed the potential geopolitical misuse of the responsibility to protect as a
means to circumvent the jus cogens prohibition of the use of force stipulated in Article 2 (4)
of the Charter of the United Nations. While the responsibility to protect could advance
human rights, its slogan-like mediatization and the dangers of arbitrary and selective
application would erode the Charter.23
14.
The Independent Expert proposes a reformulation of the doctrine to lift it out of the
narrow focus on protecting populations from war crimes and genocide to a broader duty to
protect populations from war, military interventions and structural violence. The
international community has an interest in reaffirming a duty to protect and actively
advance civil, cultural, economic, political and social rights. Governments, parliaments and
courts have a responsibility to act in the public interest for economic stability, social
development, environmental sustainability, food security, improvement of health and
labour standards, through taxation, precautionary and preventive measures against the
dangers of genetically modified organisms,24 fracking,25 open-pit mining, pesticides, air and
water pollution, corruption, monopolies and asymmetrical trade. Those generic obligations
of governance are the raison d’être of organized society. Rights holders of the responsibility
to act are individuals and peoples, including indigenous peoples. Duty bearers are
Governments, parliaments and courts.
15.
Never must the courts become instruments of injustice. Never should they lend
themselves to the execution of manifestly unjust investor-State dispute settlement awards.
Courts should exercise their constitutional and implied powers to deny implementation in
cases of abuse of rights, unjust enrichment or manifestly ill-founded awards, such as when
arbitrators invent outrageously extensive interpretations.
16.
The human rights and fundamental freedoms enshrined in the International
Covenant on Civil and Political Rights, the International Covenant on Economic, Social
and Cultural Rights, numerous regional human rights treaties like the Convention for the
Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights), the European Social Charter, the American Convention on Human Rights and the
20
21
22
23
24
25
GE.16-11938
Joseph Stiglitz, “Developing countries are right to resist restrictive trade agreements”, The Guardian,
8 November 2013.
Joseph Stiglitz, “The secret corporate takeover of trade agreements”, The Guardian, 13 May 2015.
www.un.org/en/preventgenocide/adviser/responsibility.shtml; A/63/677.
www.un.org/press/en/2009/ga10850.doc.htm.
www.globalresearch.ca/the-seeds-of-suicide-how-monsanto-destroys-farming/5329947.
www.alternet.org/environment/8-dangerous-side-effects-fracking-industry-doesnt-want-you-hearabout.
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