The following sections will describe how has Argentina actively contributed to the work of the Council since 2006, notably through the promotion of international human rights norms and standards on many issues closely related to its national experience. These issues include the right to the truth; forensic genetics and human rights; enforced disappearances; business and human rights; the impact of foreign debt, in particular vulture funds, in human rights; and the rights of older persons and LGBTI individuals.

III.5.1 The right to the truth

III.5.1.1 Commission on Human Rights Resolution 2005/66 and OHCHR study on the issue

Following its traumatic experience during the 1976-1983 dictatorship, Argentina recognized the right to the truth within the framework of a friendly settlement facilitated by the Inter-American Commission at the end of the 1990s.^[1] The case related to the truth about the fate of victims of gross human rights violations, notably enforced disappearances. The recognition of this right contributed to intense judicial work, which made it possible for many families to discover the fate and whereabouts of their relatives as well as to find out the circumstances of their disappearance and who was responsible for those crimes. In 2005, after a long fight against impunity, through which significant progress was made at the national level, Argentina pushed for the elaboration, negotiation and adoption of the first resolution ever adopted at the United Nations on the issue: Commission on Human Rights Resolution 2005/66.^[2]

In its preambular part, the resolution refers to IHL provisions, i.e. Articles 32 and 33 of the Additional Protocol (I) to the 1949 Geneva Conventions,^[3] which recognize the right of every person to know what happened to his or her loved ones after an armed conflict. This is because in many armed conflicts there are persons whose whereabouts are unknown; persons who are separated in war fronts; or prisoners of war.

Moreover, the preamble of the resolution affirms that the right to the truth was gradually addressed by human rights treaty bodies, special procedures mandate-holders, and the Sub-Commission. Indeed, the latter played a useful role when, in 1997, it prepared a Set of Principles against Impunity, which was updated by an independent expert, Diane Orentlicher, in 2005.^[4]Indeed, principle 2 of the Updated Set of Principles against Impunity recognizes the right to the truth.

Nevertheless, the aforementioned principles were not endorsed at the inter-governmental level either by the Commission or the Council. Thus, the right to the truth was not recognized as such in international human rights law until the International Convention for the Protection of All Persons from Enforced Disappearance was adopted in 2006, a few years later than the resolution under study.

The preambular part of Resolution 2005/66 also makes reference to the fact that the right to the truth might be characterized as the right to information in some legal systems. This inclusion is to be regretted because the two rights are clearly different: the right to access to information is mainly related to public information in the interest of transparency, which is essential in any democratic society, for instance to fight corruption. In cases of requests for information, the State is able to legitimately reject the request if that information is confidential on different grounds, including national security. In contrast, the right to the truth generally deals with information which is deemed to be confidential, and that generally involves the action of State agents who committed or allegedly committed serious crimes. If equated with the right to access to information, it would be very easy to dismiss almost any request related to the right to the truth.

Finally, the preambular part of this resolution mentions the dimensions of the right to the truth. This right has an individual dimension that entitles every person, in particular relatives of victims of terrible crimes or their representatives, to know what happened to their loved ones after gross human rights violations or serious violations of IHL. It also has a collective dimension because, as it deals with terrible tragedies that affect a society as a whole, any person is entitled to know the truth about past violations in his or her country inter alia to prevent the recurrence of terrible tragedies and ensure memory.^[5]

In the operative part, Resolution 2005/66 recognizes the existence of the right and highlights the importance of respecting and protecting the right to the truth. This operative part also welcomes the establishment of judicial and non-judicial mechanisms—including truth commissions—to implement the right and encourages States to comply with recommendations made by non-judicial mechanisms. It also encourages States to establish, where appropriate, non-judicial mechanisms to complement the justice system. Finally, it requests OHCHR to prepare a study on the concept and scope of the right to the truth as well as best practices on the matter. It also invited special procedures mandate-holders to work on the issue within the context of their mandates.

Following the request in Resolution 2005/66, OHCHR prepared a valuable study which made a great contribution to the interpretation of the right to the truth.^[6] This study starts with the legal and historical basis for the right to the truth as a right. In this regard, it recognized the origin of the right in IHL with regard to missing persons, in the context of international armed conflict as well as its extension to all situations of armed conflict, according to the interpretation of the International Committee of the Red Cross (ICRC), which also considered the right as having acquired the status of customary international law.^[7]

The study also reiterates that the right to the truth was recognized by the Working Group on Enforced or Involuntary Disappearances and the Human Rights Committee within the context of enforced disappearances in the Latin American region. It further indicates that the right was specifically recognized in the Set of Principles against Impunity, the Guiding Principles on Internal Displaced Persons, and the UN Principles on Reparations. It also mentions that the Outcome of the International Conference on the Fight against Racism, Racial Discrimination, Xenophobia and Related Intolerance of Durban in 2001 highlighted the importance of historic truth with a view to dealing with the tragedies of the past. Moreover, it states that the right to the truth was recognized by the then Secretary-General in the Bulletin on the observance by the UN forces of international humanitarian law, and also affirms the importance of this right in peace processes. The High Commissioner has also affirmed the importance of respecting the right to the truth, for instance, in a report on the human rights situation in Colombia (E/CN.4/2005/10, para. 5). The study also recalls GA resolutions since the 1970s highlighting the importance of knowing the fate of the disappeared. The study also mentions that the SC and the GA have affirmed the importance of knowing the truth after genocide, crimes against humanity and other gross human rights violations. It also mentions some general references to the right in the former Commission when dealing with amnesties (e.g. Commission resolutions 1989/62, paragraph 7 (b) and Commission resolution 2002/60).^[8]

The study also takes note of the fact that the right to the truth was recognized at the regional level in Europe, the Americas and the Southern Cone (MERCOSUR countries) and affirms that the right has also been recognized in some peace agreements and national courts. Nevertheless, it was in the Inter-American system that the right to the truth underwent significant development, thanks to the work of the Inter-American Commission and Court. This was so because the need to know the fate of the people who disappeared during the military regimes in the region became of the utmost urgency. In this context, the study indicates that international and regional bodies and courts have recognized the right to the truth in relation to gross human rights violations such as enforced disappearances, extrajudicial executions, torture and serious violations of IHL.^[9]

Regarding the nature of the right, OHCHR affirms that it is an inalienable right and considers that it should be distinguished from the right to freedom of expression, including the right to information, because the right to the truth should not be restricted in certain cases as happens with the right to information. It also indicates that this is the reason why the amnesty laws that prevent investigations affect the right to the truth, which is essential in any democratic society.^[10]

OHCHR’s study also describes institutional and procedural mechanisms to implement the right to the truth, such as international tribunals, truth commissions, commissions of inquiry, national criminal tribunals, national and other administrative bodies, including human rights institutions. Accordingly, the right to the truth could be exercised through international criminal tribunals such as the International Criminal Court (ICC). Although these types of tribunals focus on the accountability of those responsible for crimes, they help to find the truth by using rigorous evidence to establish facts. National criminal procedures can implement the right to the truth in a similar fashion. This would be the ideal way to satisfy the right because tribunals also guarantee other key rights in the fight against impunity, such as the right to justice and to reparation.^[11]

Nonetheless, the study emphasizes that, in a large number of cases, the right can be exercised through truth commissions, without including in these mechanisms the prosecution and punishment of perpetrators. Since 1974, with the establishment of a truth commission in Uganda, non-judicial mechanisms have been a useful tool for the implementation of the right to the truth in more than 40 cases around the world. However, truth commissions can have some limits: the timeframe which is investigated, the time actually available to the commission to conduct its work, and the material scope of what is investigated.^[12]

Even though these commissions have to respect certain protection standards related to the due process, they do not have a jurisdictional character. This is a relevant point because in some countries truth commissions have replaced the criminal processes for the judgment of those allegedly responsible. However, truth commissions constitute a valuable aid, as they not only clarify events but also compile information with the purpose of contributing to the justice system. Likewise, the commissions must keep evidence of the events, that is to say, they have to prevent documents or other pieces of evidence from being stolen, destroyed, shortened or forged.

Most of them investigate human rights violations and other crimes committed in the past. However, there are truth commissions, such as the ones in Rwanda and the Philippines, which have investigated violations being committed until their establishment and during their operation. Generally, the commissions investigate events committed in only one country but, in special cases, they have considered violations carried out abroad (e.g. in Chile or South Africa), and within different frameworks, such as the disintegration of a country (e.g. the former Yugoslavia) or regional operations (e.g. Central Africa–Great Lakes Region, Latin American Southern Cone).

OHCHR indicates that in Latin America, the right to the truth was recognized by national courts at the highest level. The Constitutional Courts of Colombia and Peru and the Federal Criminal Courts of Argentina have developed important jurisprudence in this respect. Some peace agreements have also recognized the right of families to know the fate of their missing relatives. That was the case, for example, with the General Framework Agreement for Peace in Bosnia and Herzegovina.^[13]

The study of the High Commissioner also affirms that national human rights institutions can play a role in implementing the right to the truth through fact-finding investigations. Another way to implement the right to the truth is to have access to archives.

The study concludes that the right to the truth is an inalienable and autonomous right that is related to the obligation of States to investigate gross human rights violations and serious violations of IHL as well as providing reparations. The study also affirms that the right is also related to the principle of the rule of law in addition to other human rights. The study also concludes that the right implies the need to know the facts about how human rights violations were committed and why those events happened and, in some specific violations, to know the fate of victims. It also recognizes the collective dimension of the right, because society has a right to know the truth about the commission of heinous crimes. Furthermore, the study concludes that the right to the truth is a stand-alone right that admits no derogation. Amnesties should not deny or limit the right. Finally, the study reiterates that the right can be implemented by various means, including tribunals and truth commissions.^[14]

III.5.1.2 Human Rights Council Decision 2/105 and OHCHR report on the issue

A new initiative on the issue was submitted by Argentina one year later in the then recently established Human Rights Council. In 2006, the Council adopted Decision A/HRC/DEC/2/105 by consensus. The decision requested a new report from OHCHR on best national and international practices on the right to the truth and on the individual and societal dimensions of this right, taking into consideration the views of States, international organizations and NGOs. In this context, OHCHR submitted a second report.^[15]

In its introduction, OHCHR indicates that a group of States made contributions to the report (including Argentina) and recalls the main conclusions of its first study on the right to the truth. Regarding the implementation of the right, the report makes reference to national experiences submitted by States for the report.^[16]

Regarding developments at the UN level, OHCHR mentioned, for example, that the Human Rights Committee has indicated the importance of truth commissions in ensuring the right to the truth. At the regional level, OHCHR makes reference to a new development: in 2006, OAS and MERCOSUR recognized the right to the truth through a regional resolution and a sub-regional declaration, respectively. It is worth mentioning that both, the resolution and the declaration, were also mainly promoted by Argentina.^[17]

The report concludes that the right to the truth has been recognized in many treaties and other legal documents as well as in national legislation and international, regional and national jurisprudence. It also affirms that it is clear that it is a right that continues to evolve. In this context, OHCHR considered that it would be interesting to further study the collective dimension of this right (e.g. the question of historical memory and records); the contribution of criminal proceedings to the right to the truth, in particular the role of victims and their families to guarantee the right to the truth in order to provide standards on the matter; and the question of records and the right to the truth in order to elaborate guidelines on the issue.^[18]

III.5.1.3 Human Rights Council Resolution 9/11, the OHCHR report and a panel on the issue

In 2008, Argentina promoted a new initiative in the Council on the right to the truth. The new draft resolution was again elaborated by the South American country, which also led negotiations and advocated for its adoption. In this case, it was a substantive resolution which decided to take stock of the developments to date, and to request from OHCHR further analysis of issues related to the implementation of the right to the truth, following the recommendations of its latest report, notably on the question of archives. The initiative ended up being adopted by the Council as HRC Resolution 9/11. In the preambular part, there was an important inclusion: the fact that the right was recognized in a binding international human rights instrument: Art. 24(2) of the International Convention for the Protection of All Persons from Enforced Disappearance adopted in 2006. The new preambular part also highlighted the relevant conclusions of the first study on the right to the truth which, among other things, recognized it as a stand-alone right.

In its operative paragraphs, the resolution remarked on the importance of cooperation and technical assistance in this matter. Following the Argentine proposal, there was also a new request to the Office to prepare a report focusing on the preservation of archives and witness protection programs. The Council also decided to convene a panel on the right to the truth during its thirteenth session.

Following this new request, OHCHR issued its third report. As requested, the High Commissioner dealt with two main issues: archives and witness protection. A number of countries contributed by sending inputs to this report, including Argentina. Regarding archives, the Office begins by explaining that the archive system in a given State is created according to a structure. If the structure changes, so does the archives system. In the aftermath of gross human rights violations or serious violations of IHL, the transitional period has its own archive, which is very valuable for the history of a given country. ^[19]

OHCHR indicates that archives can be governmental or privately-owned and records can originate from States, international organizations, NGOs, churches or other sources. In general, records regarding gross human rights violations come from State archives. The report explains how to manage the archives at the national and individual levels, and recommends that all archives be kept in a national institution and copies in a separate place —e.g. another ministry, an international criminal court, a mixed truth commission—which in some cases could be outside the country for security reasons.^[20]

The report also mentions that, in transitional periods, the first step is to understand how the government worked. Three issues—i.e. the structure, functions and nature of records—are relevant to ensure the authenticity of documents which could be used as evidence in judicial or truth commissions. In all cases, it is highly recommended for a State to have a single systematized archival system. If a part of those records has to be transferred to another place for a period of time, all originals should be kept together, and a copy should be transmitted to a successor body.^[21]

Regarding the issue of witness protection, OHCHR recalls its experience in dealing with witness protection and reports that it has incorporated the issue in a number of manuals. In the report, the High Commissioner links the need to protect witnesses with the obligation to investigate gross human rights violations and to provide effective remedy. There are some provisions of international conventions against transnational crime and against corruption which could be considered in the human rights context because they regulate witness protection programs. However, there are also differences to consider between transnational crimes and gross human rights violations in terms of witness protection. While in cases of transnational crimes, witnesses tend to be insiders and the State is usually not involved, in cases of gross human rights violations, witnesses mostly are victims or relatives of victims of gross human rights violations and State agents are involved in those violations.^[22]

The report also affirms that all international criminal tribunals have provisions regarding witness protection, including protective measures and counseling. Witness protection programs provide a full range of physical protection and psychosocial support to program participants. Protected witnesses are able to give essential evidence regarding gross human rights violations when that evidence is not available from other sources.^[23]

OHCHR also reports that there is a significant number of States that have enacted legislation on the issue. There are many issues to consider, such as physical protection, relocation, change of identity, how and when to exit the program and protective measures—i.e. assistance to appear in court—and psychological support. OHCHR considers that witness protection programs should be framed by law and include psychological assistance.^[24]

A witness who participates in a program has to comply with strict requirements, which often include a certain level of isolation from his or her previous social environment. Failure to comply with those requirements may result in dismissal, but the person can leave the program on a voluntary basis, assuming the risks in terms of safety. In the long term, the objective is to end the program when the risk no longer exists.

The report concludes that archives are important for guaranteeing the right to the truth, for instance through truth commissions; for vetoing officials who might have been involved in past crimes; and for making reparations. Archivists can help States to elaborate access laws. In transitional periods after gross human rights violations and serious violations of IHL, truth commission archives tend to be national and, in some cases, there are hybrid situations, where the archives are in UN possession.^[25]

In relation to witness protection programs, the Office further indicates that there is a need to have best practices and elaborate standards that would serve as guidelines for the protection of witnesses who participate in trials or quasi-judicial mechanisms. It would be important that national programs in this regard could be financed by the international community. It would also be essential that witness protection programs are not managed by the police, the security forces or the military. Finally, it would be desirable to work on international relocation plans for witnesses in cases of gross human rights violations. This issue has already been addressed by various international and regional intergovernmental organizations in relation to transnational crimes.^[26]

Finally, in conformity with what was requested by Council Resolution 9/11 promoted by Argentina, the Council organized a panel on the right to the truth, with the cooperation of OHCHR.^[27] Argentina considered this event to be an important one for discussing the way to systematize all aspects regarding this right and participated actively in the organization of the panel. During this event, there were presentations from experts from different regions of the world, which were followed by a group of States highlighting the importance of the right and the desirability of considering its systematization in a specific UN declaration on the issue.

III.5.1.4 Human Rights Council Resolution 12/12, the OHCHR report and an expert seminar on the issue

The next initiative on the right to the truth in the Council was presented in 2009 and was also prepared, negotiated and led by Argentina. The result was the adoption of HRC Resolution 12/12, which in the preambular part introduced references to the latest High Commissioner’s report, the increase in ratifications of the International Convention on the Protection of All Persons from Enforced Disappearance, and the recognition of the right to the truth made by the Special Rapporteur on the independence of judges and lawyers.

In the operative part of the resolution, the Council requested OHCHR to elaborate a report considering the need to develop new standards and best practices on witness protection for their cooperation in trials regarding gross human rights violations. The Council also decided to ask the High Commissioner to organize a seminar to elaborate guidelines on the preservation of archives. Both requests were included by Argentina as a follow up to the conclusions and recommendations of the previous OHCHR input.

In conformity with the new request, OHCHR produced a new report on the right to the truth.^[28] The report affirms that there is a significant number of witness protection programs in the context of organized crime in courts both at the national and international levels. The report lists three categories of witnesses: justice collaborators, victim-witnesses and innocent bystanders. In practice, programs limit protection to witnesses and their families or persons close to them. The Office recommends that the unit that implements the program is independent from State structures.^[29]

The report informs that some countries—such as Canada or South Africa—allow their competent authorities to cooperate with other States in relocation. Other countries started to cooperate on related issues among their sub-region, such as the Nordic States.^[30] Finally, OHCHR concludes that there are not many experiences of national courts which have implemented these programs in cases of gross human rights violations or serious violations of IHL, so it could be useful to develop a normative framework aimed at enhancing common standards and best practices. It also affirms that it would be advisable to have a justice sector strategy, which provides appropriate training to the police, prosecutor and judicial institutions.^[31]

Moreover, in conformity with Resolution 12/12, OHCHR organized a seminar on the right to the truth and the preservation of archives.^[32] Argentina participated in this event, where there were experts and practitioners, who focused on four themes: the preservation of archives and the right to the truth; the use of archives in criminal accountability processes; the use of archives in non-judicial truth-seeking mechanisms; and the placement and management of archives of repressive regimes.

In the report on the event, OHCHR indicates that archives often contain evidence for trials related to human rights violations and non-judicial truth mechanisms. This evidence is found in the public and private archives and in all physical formats. States have an obligation to have an archival policy in place for archives in the possession of both the State and individuals.

The participants in the seminar concluded that States should enact laws on archives establishing a framework for managing State records from their creation to destruction or preservation in an historical archive, and establishing criteria for access. They also agreed that the records of truth commissions and special courts and tribunals must be preserved. The International Council on Archives has elaborated many standards, including a guide for managing the records of NGOs. This is important because on many occasions victims and NGOs prefer to trust private archives.

III.5.1.5 Human Rights Council Resolution 21/7

In 2012, a new resolution on the right to the truth was adopted: A/HRC/RES/21/7. The initiative was once again submitted, negotiated and led by Argentina. In its preambular paragraphs, this resolution included new developments, such as the entry into force of the International Convention for the Protection of All Persons from Enforced Disappearance and a general comment of the Working Group on Enforced or Involuntary Disappearances on the right to the truth. This general comment, adopted by the Working Group in 2010, helped to clarify even further the notion, content and scope of the right to the truth regarding enforced disappearances.^[33]

In its operative paragraphs, the resolution refers to the need to cooperate with the new mandate-holder on issues related to truth-processes, calls on States to consider the ratification of the International Convention against Enforced Disappearances, and requests States to consider the elaboration of comprehensive witness protection programs covering all types of crimes. It also encourages States to establish a national archival policy that ensures that all archives pertaining to human rights are preserved and protected; to enact legislation that declares that the nation’s documentary heritage is to be retained and preserved; and to create a framework for managing State records from their creation to destruction or preservation.

Finally, it requests OHCHR to invite all stakeholders to provide information on good practices in the establishment, preservation and provision of access to national archives on human rights, and to make the information received publicly available in an online database. As a consequence, the Office conducted consultations and included the information received on its webpage.^[34]

III.5.1.6 General Assembly Resolution on the right to the truth 68/165

The next and last specific initiative on the right to the truth submitted, negotiated and led by Argentina to date was in 2013. For the first time, the issue was dealt with and adopted at the General Assembly through Resolution 168/65. This resolution incorporated the new developments at the time.

In its preambular part, it recalls GA Resolution 65/96 of 21 December 2010, in which it proclaimed 24 March as the International Day for the Right to the Truth concerning gross human rights violations and for the dignity of victims. The proclamation of this international day was promoted by El Salvador—cosponsored by Argentina—taking into consideration the developments of the right to the truth at the UN level since 2005 and the legacy of Monsignor Oscar Arnulfo Romero in his country of origin.^[35]

In its operative part, GA Resolution 168/165 refers to the important role of civil society in monitoring the implementation of the recommendations issued by truth commissions, and encourages donors to make the training, support and strengthening of civil society organizations a priority. It also encourages UN agencies, Member States and NGOs to exchange experiences on the right to the truth, with a view to improving the effectiveness of relevant mechanisms and procedures empowered to seek information, assert facts and effectively reveal the truth about what happened after gross human rights violations and serious violations of IHL were perpetrated. Finally, the resolution requests the Secretary-General to organize an event in observance of the International Day for the Right to the Truth.

III.5.1.7 Assessment of the development of the right to the truth and Argentina’s contribution in this regard.

Since 2005 to date, Argentina has contributed decisively to the inter-governmental development of international norms and standards on the right to the truth. Indeed, it was one of the main promoters of the inclusion of this inalienable and autonomous right in the UN Convention against enforced disappearances, adopted in 2006 and in force since 2010. After this date, there could be no more discussion about the existence of the right in international human rights law as an autonomous right.

Secondly, at the UN level, through several resolutions adopted by the Commission, the Council and the GA, Argentina consolidated the intergovernmental recognition of international standards produced by the expert work of the former Sub-Commission, special procedures, treaty bodies and regional bodies. In these resolutions, Argentina also took into consideration substantive recommendations and conclusions of expert reports. At the UN level, Argentina also promoted a panel on the right to the truth in the Human Rights Council and actively supported the establishment of an International Day on the Right to the Truth.

Thirdly, at the regional level, the country submitted a series of resolutions at the OAS and, at the sub-regional level, contributed to developing a specific commission on the right to the truth, memory and justice within the human rights body of the MERCOSUR.^[36] All these initiatives have in a way been an “export” of successful policies and legislation on the issue at the national level, which were some of the most advanced in the world, as we will see in depth in the next chapter.

III.5.2 Forensic genetics and human rights

III.5.2.1 The use of forensic genetics in cases of gross human rights violations and serious violations of international humanitarian law

Both the phenomenon of persons missing in armed conflicts, violent situations or catastrophes, and the terrible crime of enforced disappearances committed by State agents under repressive regimes, have caused a great deal of suffering not only to those who are victims of these tragic situations themselves but also to their loved ones, who search for them, dead or alive.

In numerous cases, following serious violations of IHL or gross international human rights violations, many people disappeared. The first systematic use of forensic science in the search for disappeared persons in Latin America took place in the 1980s. In the 1990s, the use of forensic genetics was extended to other regions of the world such as Europe (e.g. the Balkans region) or Africa (e.g. Rwanda). The International Committee of the Red Cross (ICRC) made a very relevant contribution to the issue through its work.^[37]

Argentina was a pioneer in the use of forensic genetics, to investigate the cases of enforced disappearance by its last dictatorship (1970s and 1980s) and to restore the identity of hundreds of children born in captivity or removed from their parents during that period, which also helped these children to reestablish links with their families of origin.^[38]

The scientific technique of forensic genetics played an important role in the identification of victims of serious atrocities such as enforced disappearances. Nevertheless, there are legal and technical obstacles, such as informed consent, the right to privacy, the recovery of remains and the collection of samples, all of which can be aggravated by the number of people to be identified and the multiplicity of actors involved.^[39]

By 2008, there were UN standards for specific situations—e.g. the manual for the use of forensic genetics in cases of extrajudicial executions^[40] and the Istanbul Protocol for the investigation and documentation of torture and ill treatment.^[41] Nevertheless, there was no systematic guidance on the use of forensic genetics in the context of gross human rights violations and some aspects were not fully covered, such as certain legal and ethical issues.^[42]

III.5.2.2 Towards the first Human Rights Council resolution on the issue

On 23 November 2008, the then Argentine President, Cristina Fernandez de Kirchner, began her statement at the GA inauguration by reaffirming the importance of the protection of human rights as a State policy in Argentina. In this context, she indicated that, on the basis of Argentina’s national policy on the pillars of memory, truth and justice in the aftermath of gross human rights violations, the country had decided to support three forensic teams from Argentina, Guatemala and Peru in promoting the establishment of genetic banks to identify victims of gross human rights violations.^[43]

To move this initiative forward, the Argentine Government decided to introduce the link between forensic genetics and human rights for the first time in the Human Rights Council. Clearly linked to its own past, Argentina decided to contribute to the universal human rights system with the elaboration of common standards for the use of forensic genetics as a tool to identify remains in the aftermath of gross human rights violations and serious violations of international humanitarian law. To this end, Argentina worked closely with the ICRC, which has vast experience in the field, as well as with the Argentine Forensic Team, an internationally renowned organization that has worked in several countries in different regions of the world.

It is clear that there is a strong link between the work of forensic experts, the use of forensic genetics and the right to the truth. In the case of Argentina, for instance, the work of the Argentine Forensic Team made it possible to identify the remains of many people who were subjected to enforced disappearance first and later, in many cases, murdered by State officials from the last dictatorship.

The Argentine Forensic Team also helped to identify those children who were born in captivity and later separated from their abducted mothers and given to other families in illegal adoptions. The opportunity to satisfy the right to the truth about the fate of loved ones, including the circumstances involved and the whereabouts of their remains, was key to providing some comfort for several families.

As it was quite a novel issue which had to be discussed and understood by the international community, in 2009, Argentina decided to organize a special event within the framework of the Council on forensic genetics and human rights and invited special guests to make presentations, including a member of the Argentine Forensic Team and the President of the prestigious Argentine NGO “Grandmothers of Plaza de Mayo”. It was a valuable opportunity to raise awareness of this specific area and its importance in IHL and international human rights law.

III.5.2.3 Human Rights Council Resolution 10/26 and OHCHR report on the issue

In 2009, Argentina decided to submit, negotiate and lead the first resolution adopted on forensic genetics and human rights: HRC Resolution 10/26, which was approved by consensus during the Council’s 10th session. The preambular part of the resolution recalls the main instruments of IHL and international human rights law, which recognize the right to the truth, as well as Commission and Council resolutions adopted on this issue. It also recalls Commission resolutions on human rights and forensic science adopted between 1993 and 2005.

The preambular part of the resolution also makes reference to GA Resolution 61/155 (2006) on missing persons, which emphasized the importance of genetics in identifying these persons, recognized the progress of this method and noted the 2002 report of the ICRC on missing persons. It also highlights the importance of restoring the identity of persons who were separated from their families of origin.

Furthermore, the preamble also recognizes the fact that forensic genetics may contribute to the identification of the remains of victims, to the restitution of the identity of those persons illegally taken away, and to addressing the issue of impunity. It also recognizes the importance of ethics on this issue and recalls a series of instruments related to bioethics and the human genome.

In its operative part, the resolution encourages States to consider the use of forensic genetics in cases of gross human rights violations and serious violations of IHL. It also stresses the importance of reporting the results to the competent authorities, including those in the justice system. Finally, it requests OHCHR to ask for information on best practices in the use of forensic genetics with a view to considering the drafting of a manual as a guide for the application of forensic genetics, including, where appropriate, the voluntary creation and operation of genetic banks.

In this respect, OHCHR submitted a report in 2010.^[44] The report starts by recalling the three main objectives that Argentina was promoting with this initiative within the Council: to acknowledge the importance of forensic genetics in cases of gross human rights violations and serious violations of IHL; to promote cooperation on the issue of locating victims’ relatives who have moved from their places of origin; and to promote the development of international standards on the issue through the elaboration of a manual.^[45]

OHCHR recognizes the important role of forensic science in criminal investigations and in the identification of disappeared persons in cases of human rights violations or other fatalities. Some countries have law and standard practices in this regard—e.g. Argentina, Spain, Portugal and Peru. At the international level, rules and practices are not systematized. OHCHR indicates that the forensic community agrees that it would be advisable to have a general framework for the exhumation and identification processes, including the establishment of protocols for exhumation, autopsies, and reliable methods for producing evidence; an appropriate way to involve families in this scientific activity; and procedures for handing over the remains to the family.^[46]

The report describes the experience of El Salvador, Colombia and Argentina on the issue. It also refers to jurisprudence of the European Court of Human Rights on the importance of the application of human rights standards in the use of forensic genetics and relevant international legislation on the issue. In addition to the description of national experiences, OHCHR highlights the importance of databanks of relatives of disappeared persons, in particular for large-scale identification projects, and affirms that the more complete the bank, the greater the chance of identifying remains that are found and believed to correspond to a victim. Those databanks would allow for future identifications as additional graves are discovered. ^[47]

The report also refers to the importance of defining issues such as procedures to be used, goals, restrictions, consent, and terms of confidentiality. In this sense, it is important to confirm that the goal is to identify a genetic relation between victims and their relatives and there is no other motive—e.g. scientific or commercial. It is also important to establish that donation should be voluntary and that there is a clear limitation on the use of DNA samples.^[48]

In this context, OHCHR supports the original initiative of Argentina in the sense of promoting genetic data banks and guidelines in this regard; and emphasizes that these data banks should have a board that includes the participation of NGOs and the relatives of the victims; its results must be confidential; and data banks have to be monitored on a regular basis.

OHCHR also addresses the possibility of producing a manual or guidelines on the issue. In this regard, it indicates that the International Commission on Missing Persons (ICMP) had already held discussions on developing guidelines on identification measures for victims of disasters. ICMP had also consulted a series of organizations that work in this field to discuss the potential merits of a UN manual on this matter. These organizations unanimously supported the Council examining the application of forensic genetics to human rights because it is the most rigorously established scientific basis for identification. Nevertheless, they suggested that it would be difficult to elaborate a manual because of the continuous technical development in the field, which would make it burdensome to keep the manual updated.

In any case, the ICMP considered that it would be useful to elaborate a set of UN guidelines to raise awareness of the importance of forensic genetics beyond cases of missing persons, emphasizing that, to the maximum extent possible, efforts should be made to have objective scientific methods, and to share best practices in the application of forensic genetics (e.g. laboratory accreditation, formal quality assurance mechanisms). These guidelines could be elaborated in consultation with the community of forensic genetic scientists. Of particular relevance for such guidelines would be the issues of genetic data protection and informed consent.^[49]

The report concludes by supporting the Argentine initiative—included in Council Resolution 10/26—emphasizing the importance of the use of forensic genetics and national data banks.^[50]

III.5.2.4 Human Rights Council Resolution 15/5 and OHCHR report on the issue

The second resolution of the Human Rights Council on forensic genetics was adopted in 2010 (HRC Resolution 15/5). The initiative was again submitted, negotiated and led by Argentina and adopted by consensus. In its preambular part, the resolution refers to new developments and notes the general comment of the Working Group on Enforced or Involuntary Disappearances on the right to the truth, in which it highlighted the importance of identifying the victims of enforced disappearance through DNA analysis.

The operative part of the resolution includes an appreciation of the conclusions of the first OHCHR report on forensic genetics and human rights, and also requests the High Commissioner to submit a new report on the obligation of States to investigate serious violations of human rights and IHL in terms of identifying victims of such violations, including through the use of forensic genetics, with a view to considering further the possibility of drafting a manual on the issue, including, where appropriate, the voluntary creation and operation of genetic banks.

As a consequence, OHCHR elaborated a new report on forensic genetics in 2011.^[51] The report recalls that Argentina, as main sponsor of Council resolutions on forensic genetics and human rights, decided to set up a working group composed, among others, of geneticists, forensic anthropologists and experts in bioethics, with the support and technical assistance of the ICRC, to prepare a draft manual for the application of forensic genetics and the creation and management of genetic databases in the context of investigations of violations of human rights and international humanitarian law. Indeed, Argentina organized a meeting within the framework of the second Latin American Congress on Human Genetics, held in Costa Rica in May 2011, to move the issue forward.

The report further affirms that the State obligation to investigate human rights violations is enshrined in Article 2(1) of the International Covenant on Civil and Political Rights; has been recognized and interpreted by the Human Rights Committee; and is included in Articles 3 and 12 of the International Convention for the Protection of all Persons from Enforced Disappearance and Article 12 of the International Convention against Torture. The report also mentions that the obligation to investigate the individuals responsible for crimes is also contained in the Geneva Conventions of 1949, in the UN principles on reparations, the updated principles against Impunity, and in the Rome Statute of the International Criminal Court. According to OHCHR, this obligation is essential to guarantee the rights to the truth and to justice.

The report also recalls that the obligation to investigate is set out in the three regional human rights conventions (i.e. European, Inter-American and African). It also describes the jurisprudence of the European Court, the Inter-American Court and the African Commission in this regard. In this context, it concludes that the duty of States to investigate gross violations of human rights law and serious violations of IHL is well established.

III.5.2.5 Assessment of Argentina’s contribution to the field of forensic genetics

Argentina introduced into the universal human rights system the use of a scientific technique, forensic genetics, which has been widely welcomed by the Council, UN Member States, specialized international organizations and the scientific community. In this sense, the South American country also promoted the development of international human rights standards in the use of forensic genetics applied to human rights violations, including through the establishment of national data banks, building on its national experience. All Council resolutions and OHCHR reports support the development of these international standards.

After the second OHCHR report, Argentina, together with the ICRC and a team of forensic experts and anthropologists, worked towards the elaboration of draft guidelines on the issue, following HRC resolutions regarding the matter. The draft guidelines were drawn up by a group of forensic experts and comprise four sections: an introduction to forensic genetics and ethical issues faced when employing forensic genetics in this type of analysis; legal aspects of the identification of victims of violations of human rights, international humanitarian law and the right to identity; the use of bio banks and personal genetic databases in this type of casework; and technical aspects of undertaking an identification program.^[52]

The guidelines are designed to be used by national agencies and international and regional intergovernmental organizations. They include the extensive experience of several agencies in sensitive investigations, particularly from Latin America, where the problem of the disappeared has been widespread and serious. It is hoped that the guidelines will provide a valuable reference for dealing with the tragic legacy of armed conflicts and gross human rights violations of human rights and humanitarian law.^[53]

The set of guidelines was presented in a side event of the Human Rights Council during its 28th session^[54] and it would be desirable that Argentina and interested States could submit them for adoption by the Council as a way to recognize its importance in an intergovernmental setting.^[55]

III.5.3 The establishment of the UN Special Rapporteur on the promotion of truth, justice, reparations and guarantees of non-recurrence

III.5.3.1. An Argentine-Swiss Initiative

Since 2005, the very same year that Argentina submitted its first initiative on the right to the truth to the then Commission on Human Rights, Switzerland presented a general initiative regarding transitional justice on the basis of the updated Set of Principles against Impunity elaborated by the former Sub-Commission and updated by the expert Diane Orentlicher, but not adopted by any UN intergovernmental bodies. The updated Principles against Impunity included the rights to the truth, justice, reparations and a concept related to prevention of future violations, which was called guarantees of non-recurrence. These principles were intended to be applied in the context of gross human rights violations and serious violations of international humanitarian law.

From 2008, Argentina and Switzerland started to work, first in a coordinated manner during negotiations of both their initiatives and later in a bilateral exchange, on the way to enhance their cooperation in the field of the fight against impunity within the Human Rights Council. From the beginning, and despite their different approaches on how to move forward, Argentina and Switzerland shared the common goal of promoting the protection of victims to the fullest extent possible.

After meetings of different formats at the expert and governmental levels, as well as common efforts and flexibility from both partners, these countries decided to promote the establishment of a broad mandate, which was a careful balance between their approaches: a rights-based approach more inclined towards identifying elements which could lead to the development of standard setting on the three rights of the mandate (truth, justice and reparations) and an implementation approach, based on a general framework (transitional justice) not yet universally recognized in international human rights treaties but useful for specific cases.

The outcome of these fruitful negotiations was the decision to promote the establishment of a Special Rapporteur on truth, justice, reparation and guarantees of non-recurrence After long negotiations, Argentina and Switzerland managed to include as main sponsors of the initiative relevant countries from all over the world, namely, Morocco, Ivory Coast, Uruguay, Peru and Austria. The resolution had very strong support and was adopted by the Human Rights Council on 29 September 2011 as Resolution A/HRC/RES/18/7.

This landmark resolution focuses in its preambular part on the legal framework of the new mandate, comprising international human rights treaties and also international humanitarian law; all resolutions on the right to the truth, on forensic genetics and on transitional justice, and Article 24 of the Convention against enforced disappearances, which enshrines the right to the truth.

The resolution also indicates that the Special Rapporteur could deal with truth, justice, reparations and guarantees of non-recurrence in cases of gross human rights violations and serious violations of IHL. It also indicates that strategies, policies and measures to address these situations should take into consideration the specific context. It emphasizes the importance of a comprehensive approach incorporating the full range of judicial and non-judicial measures to promote the rule of law.

Finally, the resolution establishes a Special Rapporteur for the period of three years with the following tasks: to provide technical assistance or advisory services; gather relevant information on national situations and study trends, developments and challenges and make recommendations thereon; identify, exchange and promote good practices and lessons learned, as well as identifying potential additional elements with a view to recommending ways and means to improve and strengthen the promotion of truth, justice, reparation and guarantees of non-recurrence; and conduct country visits; among others.^[56]

The resolution also calls upon Governments to cooperate with and assist the Special Rapporteur in the discharge of his or her mandate and requests the Secretary-General and the High Commissioner to provide the new mandate-holder with all the assistance necessary for the fulfilment of his or her mandate. It also requests the Special Rapporteur to report annually to the Council and the GA. Not all mandate-holders report to both of these bodies and this creates an opportunity to combat impunity at the UN level.

The mandate has been renewed every three years ever since, with the support of the main sponsors of the resolution.^[57]

III.5.3.2 The first eight years of the mandate: the thematic work of the Special Rapporteur

Due to the extensive work of the mandate and the long period under consideration, I will only focus on relevant aspects of the substantive reports and not on other activities of the mandate, such as country missions. In August 2012, the Special Rapporteur on the issue, Pablo de Greiff, submitted his first thematic report to the Council, where he describes what in his opinion should be the foundations and implementation strategies of the mandate.^[58]

In the report, the mandate-holder defines the four pillars against impunity (truth, justice, reparations and guarantees of non-recurrence) as “measures” that emerged in the post-authoritarian experience of the Southern Cone—i.e. Argentina, Chile, Uruguay and the southern part of Brazil, Bolivia and Paraguay—and to a lesser extent of South Africa and Eastern Europe. He also says that, at present, these “measures” are needed in post-conflict situations. Later, he introduces the expression “transitional justice”, which he affirms he will use for short when dealing with the pillars against impunity. He clarifies that transitional justice is not a soft form of justice but a means to contribute to reconciliation and the rule of law.^[59]

Before going any further, I would like to indicate that I do not agree with the word “measures” to refer to the rights to the truth, justice and reparations when referring to the mandate. They are not just tools of a still unconsolidated concept of transitional justice. They are human rights expressly incorporated in international human rights law. This does not mean that a comprehensive approach is not useful, but it should not affect the real nature of three of the four pillars of the mandate, which are stand-alone rights and can be exercised independently of a specific framework. I prefer, therefore, to refer to the rights to the truth, justice and reparations. From my perspective, the concepts of truth, justice, reparations and guarantees of non-recurrence on the one hand, and transitional justice on the other, are not equivalent because the rights do not depend on the concept of transitional justice to exist.

The first report also describes the opinion of the first mandate-holder regarding the aims of his work: to contribute to reconciliation; strengthen the rule of law, recognition of victims as persons and as right-holders; and build trust in society.^[60] Although I could agree with the goals in general terms, it is necessary to highlight that the goal of reconciliation is problematic. It was only preserved in the resolution at the specific request of some countries. There is no doubt that the promotion of reconciliation is a desirable goal in ideal terms, in particular in the context of countries composed of different ethnic and religious groups, which have no other option than to coexist in a peaceful and civilized way. However, in some national contexts such as the Argentine one, this concept was argued to promote the adoption of amnesty laws and to impede the prosecution of those responsible for gross human rights violations.

Apologies, memorials and even prosecution and punishment of perpetrators as “measures” suggested in the first report by the mandate-holder are clearly welcomed to recognize the victims and their suffering, but the act of reconciliation is a personal one and cannot be achieved through a specific law or decisions of a specific State institution. This is why I do not agree that a victim-centered approach should necessarily include reconciliation, even if clarifying that it is not a substitute for justice.

In his implementation strategy, the first mandate-holder also focuses on the comprehensive approach, qualifies again the right to the truth, justice and reparation as “measures” and includes areas of work such as development and security.^[61] In my opinion, the inclusion of development and security, which coincides with the two other pillars of the UN together with human rights, shows the interest of the mandate-holder in following an approach that goes well beyond the mandate, which should be the main focus of the work of a Special Rapporteur of the Human Rights Council. Such a wide inclusion of pillars and concepts in the mandate actually weakens it because it is liable to lose its precise substance.

In his second report of 2012, the mandate-holder decides to focus on the concept of the rule of law and the relation and mutual interaction between transitional justice and the rule of law.^[62] The report includes in this context the concept of transitional justice as a framework for strengthening the rule of law. The rapporteur thus interprets that the comprehensive approach of the mandate of the Special Rapporteur on the promotion of truth, justice, reparations and guarantees of non-recurrence calls for a framework of transitional justice.

It is worth stressing that this was not the name decided on for the mandate and it was not by chance that it was not called transitional justice. It was the result of difficult negotiations and a delicate balance between different positions.

The report later includes the role of the four pillars against impunity in the contribution to the rule of law and decides to put it under the umbrella of transitional justice. In this conceptual context, about which I have reservations as mentioned above, the Special Rapporteur includes the contributions of truth-seeking mechanisms, reparations and justice. He concludes by indicating that it is necessary to include a gender perspective and the specific needs of men, women and children.

In his third report in 2013, the mandate-holder persists with the framework of transitional justice—including the four pillars of the mandate in this context—and links it to development.^[63] In this regard, he affirms the importance of justice and rights considerations to development. He affirms that justice, security and development are inter-related and that the “measures” of truth, justice, reparations and guarantees of non-recurrence have particular developmental effects because they foster civic and institutional trust and build social capital.

In the following four reports submitted between 2013 and 2015, the first mandate-holder focuses on the four pillars of the mandate.^[64] He decides to include them within the somewhat vague term of transitional justice.^[65]

The first report on the pillars, regarding the right to the truth, makes a very brief reference to the legal framework on the right, focusing on the International Convention against Enforced Disappearances, the principles on reparations, Council resolutions, among other precedents. The rapporteur prefers to focus on the implementation of the “truth-seeking mechanisms”—e.g. truth commissions, commissions of inquiry.^[66] In his following report, on the pillar of the right to justice, the expert considers the right to the truth as “part of an effective right to remedy”.^[67]

To justify his opinion, he alludes to a previous report made by himself and to the set of principles on reparations, which legally speaking have the character of recommendations. In this context, it has to be stressed that, as seen above, the right to the truth was recognized in several HRC and GA resolutions and in international human rights law by Article 24 of the Convention against Enforced Disappearances. Also, OHCHR has clearly stated in its first study that it is an autonomous right. These elements have been considered by scholars in recent works.^[68] Consequently, I believe that, even if the right to the truth has a clear link with other human rights, at this stage, it is a stand-alone right.

The report on the right to the truth also describes practical aspects of truth commissions and some key national experiences, and calls attention to the expansion of these truth mechanisms from victim-tracing to investigation of the root causes that led to the terrible crimes, proposals for structural reform and even cases of corruption.

In conclusion, the report recommends the establishment of truth commissions with a gender perspective; the nomination of commissioners with high qualities; selection based on a balance between representativeness and competence; the need for caution about the inclusion of crimes other than gross human rights violations and serious violations of IHL; the means of staffing, budgeting and managing; the way to extend the lifetime of the commission archives; and cultural interventions including memorials.^[69]

The second report on the pillars focuses on justice. The Special Rapporteur emphasizes that the element of “justice” is the most developed one and suggests prosecutorial strategies; in particular, prioritization in the investigation of abuses and violations.^[70] In this sense, he describes different strategies on the basis of national experiences (i.e. easy cases, high impact cases, most serious violations, most serious crimes, most responsible perpetrators, symbolic or paradigmatic cases). The report also refers to criteria and arrangements for this prioritization (i.e. independence and impartiality of prosecutors, capacities, institutions and resources) and highlights the importance of the participation of victims in the prosecutorial strategy.^[71] In the recommendations, the report, among other things, calls for the need to respect the duty to investigate and prosecute gross and serious violations, applying the universal jurisdiction for these cases where that option is possible, and insists on the definition of prosecutorial strategies to deal with the cases. These strategies include the consideration of a specific body to implement the task.

The third report refers to the pillar of reparations and begins by recognizing that courts are unlikely to be the main avenue of redress in cases of gross human rights violations or serious violations of IHL.^[72] It also describes the legal background, including the UN Principles on Reparations,^[73] and affirms that until now no reparations program has taken a comprehensive approach, including for instance reparations for violations of the freedom of association.^[74]

Regarding the benefits of reparations, the report distinguishes between material reparations (e.g. payments in cash) and symbolic ones (e.g. official apologies, names of public spaces). The most frequent type of reparation has been material, but the use of symbolic reparations has been growing. The report rightly indicates that this tendency should not replace the other benefits. The report also reiterates that reparations include medical services—e.g. psychological support—and other forms of rehabilitation.^[75] The report also makes reference to collective reparations, which could be symbolic (e.g. public apologies) or material (e.g. construction of a hospital). The problem with the latter is that it does not constitute per se a real reparation for damages suffered as a consequence of terrible crimes.^[76]

The report also refers to challenges and problems. One main challenge is to determine the magnitude of the reparation. Ideally, it should be integral but in general in cases of gross human rights violations and serious violations of IHL that does not happen, and solutions to this problem vary from case to case. One essential problem is the lack of implementation. Regular justifications do not seem to be convincing: for instance, many States indicate that programs are unaffordable, while it has been proved that, when there is political will, a reparations program tends to be implemented even in countries with harsh economic conditions. In this context, the report recommends not resorting to economic reasons to not implement a program, and avoiding unjustified exclusions when designing and implementing programs. The report also recalls the importance of including a gender perspective in reparation programs and the participation of victims in the design and implementation of these plans.^[77]

The fourth and last report on the pillars of the mandate focuses on guarantees of non-recurrence.^[78] According to the report, the international standards relating to these guarantees have been growing since 1993, when the term was used for the first time in a specific UN report, and it has been included in the Convention against Enforced Disappearances and developed by treaty bodies and by regional courts such as the Inter-American Court. Nevertheless, the report recognizes that it still needed to define guarantee, the content, the beneficiaries and the duty-bearer. It also makes “framing considerations” of transitional processes, which vary according to the case, and “institutional interventions” to indicate problems which could be addressed to prevent violations—e.g. judicial reforms, security sector reforms. It also highlights the importance of addressing legal reforms—e.g. statutes of limitation and retroactivity issues in accordance with international law.

As a means of prevention, the report also refers to “societal interventions”—e.g. measures to prevent attacks against civil society—and “cultural and individual interventions”—e.g. prevention measures taken at the education and arts and culture levels. One last intervention has to do with the counselling and psychosocial support which has to be provided to victims.

The following report by the mandate-holder focuses on one specific guarantee of non-recurrence, which relates to the reform of the security sector, known as “vetting”—the removal from this sector of individuals associated with any regime that has committed gross violations—and provides strategies in this regard.^[79]

In the subsequent reports until the end of his term, the first mandate-holder directly focused on transitional justice: the importance of national consultations on the design and implementation of different “measures”;^[80] the victim participation in the design and implementation of those measures;^[81] regional approaches on transitional justice, advances and challenges—where he continues developing his framework of transitional justice and even calls for the establishment of a group on the issue in the SC;^[82] prevention in the UN system; the proposal of a framework approach in this regard, which contains all the elements and proposals of the report on guarantees of non-recurrence;^[83] the differences between post-authoritarian regimes and post-conflict situations;^[84] and a joint study with the Special Adviser to the Secretary-General on the Prevention of Genocide on the contribution of transitional justice to the prevention of gross and serious violations of human rights and IHL.^[85]

In 2018, the newly appointed Special Rapporteur, Fabián Salvioli, submitted additional reports: one on atrocity prevention and preventive initiatives in the institutional sphere;^[86] a second one on areas of interest—i.e. the fight against impunity, national and regional experiences on the four elements of the mandate, further development of guarantees of non-recurrence;^[87] and a third one on priority lines on engagement of the second mandate-holder with the GA: transitional justice, prevention and sustaining peace, youth creative agency for transitional justice, gender perspective and human rights and the Sustainable Development Goals in the context of the mandate.^[88] In 2019 and 2020, the expert delivered another four thematic reports, namely on apologies for gross human rights violations and serious violations of international humanitarian law, on practical experiences of domestic reparations programs, on gender perspective in transitional justice processes, and on memorialization processes as a fifth pillar.^[89]

III.5.3.3 Assessment of the work of the mandate promoted by Argentina and Switzerland.

Both Argentina and Switzerland share the same values in terms of the importance of promoting democracy and human rights at the international level and have been committed to the fight against impunity for a long time. Having different national experiences was not an obstacle to reaching consensus on establishing a mandate in the Council which could address this important objective. The existence of this mandate is most certainly welcomed and has the potential to make a significant contribution not only in relation to specific cases of gross human rights violations, but also to the progressive development of international human rights law.

The first mandate-holder developed concepts and a framework that could be useful in certain cases. He emphasized a “comprehensive” approach, which included many cross-cutting issues such as development and security. However, I do not favor a such a wide approach, as in the end it could weaken the main human rights at stake in the case of gross human rights violations.

Indeed, the rights to the truth, justice and reparations have been recognized in international human rights law, and this should not be open to interpretation according to the specific national case under study, or a comprehensive approach dealing with other UN mandates, such as development or security. On the contrary, in my opinion, those rights should be further developed within the work of the mandate-holder on this issue. In this sense, some pillars analyzed by the first mandate-holder should be revisited, notably the approach on the right to the truth for the reasons analyzed above.

III.5.4 Enforced disappearances. Cooperation between Argentina and France

III.5.4.1 The International Convention for the Protection of All Persons from Enforced Disappearance

In 2001, the former Commission decided to establish an Inter-governmental Working Group to elaborate a binding instrument for the protection of all persons against enforced disappearances, taking into consideration the draft convention prepared by the Sub-Commission in its Resolution 1998/25.^[90] In 2002, the Commission requested the working group to meet before its next annual session and to prepare a draft for the consideration of the GA.^[91] At the time, at the UN level, there was a declaration on the issue adopted by the GA in 1992. Nevertheless, this instrument, like any other of its kind, was not legally binding.^[92]

In this context, the working group in charge of the elaboration of the draft instrument met for the first time in January 2003. The initiative was promoted at the Commission by France, the same country which advocated for the establishment of a specific mandate on enforced disappearances in this body at the end of the 1970s in relation to Latin American dictatorships, which at the time strongly opposed the French initiative.^[93]

Fortunately, things radically changed in the region and, in 2003, France found a profoundly committed ally during the whole process of promoting the new convention: Argentina. Given its history, a strengthened democracy and a very engaged Government, the South American country strongly pushed for the elaboration and adoption of a valuable instrument, hand in hand with its European counterpart.

Indeed, the South American country participated in the majority of negotiations with a sizeable delegation composed not only of officials from the Argentine Mission in Geneva, but also of a significant delegation from Buenos Aires, both from the Ministry of Foreign Affairs and from the Ministry of Justice and Human Rights. This political priority was shown during the process until the very adoption of the convention by the Human Rights Council in 2006, which included the participation of the then Minister of Foreign Affairs, Jorge Taiana—something exceptional for an event of this nature. This priority was later ratified with the participation during the signing of the convention by the then Senator and first lady, and later Argentine President, Cristina Fernandez de Kirchner.

During the first session of the working group, the delegations discussed a number of key issues, such as the definition of enforced disappearances; the offence in domestic law; cases in which it could be considered a crime against humanity; the subjective element of the crime; the measures of protection against impunity; domestic prosecution and international cooperation; measures of prevention; victims; and the wrongful removal of children.^[94] From the beginning, the task was not easy because a few States were not convinced about the need for this instrument and expressed reservations about many of the proposals made during negotiations.

The second session of negotiations took place in January 2004, and there was a more comprehensive discussion on different topics. For instance, the delegations discussed whether the crime could or not be committed by non-State actors, whether the crime was an independent offence, and what the accessories to the crime and the penalties were.^[95] Argentina promoted the definition of an autonomous crime and emphasized that the crime should not include non-State actors.^[96]

During this second session, the delegations also discussed the crime of enforced disappearance as a crime against humanity. Some delegations considered that it was unnecessary for the new instrument to include a provision on enforced disappearance as a crime against humanity because it was already included in the Rome Statute of the ICC. Others, like Argentina, defended the inclusion and indicated that it was fully compatible with the provisions of the Rome Statute, although it preferred a wording different from the one used in that instrument.^[97]

The fight against impunity for such a crime was also a major point of discussion. One element to consider was whether or not to impose a statute of limitations. Another element to consider was whether there could be a justification for the crime—i.e. an order from a superior—or if it would be legal to provide amnesties or similar measures. Argentina strongly supported more progressive positions, including, for instance, the need to avoid the possibility of issuing amnesties or other similar measures. In contrast, some delegations considered the importance of amnesties and other measures in promoting reconciliation.^[98]

Other elements considered were: prosecutions in domestic courts; international cooperation; prevention; victims of enforced disappearances, including children; and the desirability of establishing a treaty body to monitor compliance with treaty obligations.^[99] Argentina had a strong and progressive position with respect to these matters.^[100]

The last part of discussions of the second session included the functions of the future treaty body and the coordination with the existing Working Group on Enforced Disappearances, the first thematic special procedure created in 1980 by the Commission.^[101] In this regard, Argentina was in favor of establishing a new treaty body. Argentina supported all functions of the committee and saw no incompatibility between the work of the future committee and that of the existing Working Group on Enforced or Involuntary Disappearances because the latter mainly had a humanitarian mandate focused on the clarification of cases in any country in the world, which was possible due to its non-conventional nature. Not all delegations were as supportive though. Some preferred to use an existing committee to supervise the obligations of this instrument—e.g. the Human Rights Committee. Some delegations supported some but not all the functions proposed for the future monitoring body, and a number of delegations defended the need to have a retroactivity clause.^[102]

The third session took place in 2005 and discussions were based on the draft convention prepared by the Chairperson. The preamble proposed by the Chairperson included the 1992 Declaration, the seriousness of the crime under negotiation, and the right to the truth, which was supported by several States, including Argentina.^[103] Argentina and many other delegations supported the language proposed, welcomed the inclusion of the right to the truth, and suggested the inclusion of other international human rights treaties. Other delegations voiced doubts about the existence of the right to the truth and suggested referring to the obligation of information.

Finally, the preamble of the adopted text of the convention included a reference to some international human rights instruments; the seriousness of the crime; the rights to justice and reparation; and, in a separate paragraph, the right to the truth.^[104] Thus, the right to the truth was recognized by international human rights law, as a separate right from that of justice and reparations, at least in relation to enforced disappearances.

Moreover, Argentina, together with various other delegations, strongly supported the definition of enforced disappearance proposed by the French Chairperson. In relation to the definition of the crime, Argentina reaffirmed its opposition to the inclusion of non-State actors, as requested by one delegation, because such a proposal would rob the instrument of its power and would change its nature: the scope would include any abduction already punishable by law, and a treaty body would only make sense if it was related to State violations.^[105]

The Argentine position prevailed; the adopted convention recognized the right not to be subjected to enforced disappearance and defined the crime as an act of State agents or individuals who act with the acquiescence of the State. The final definition also included the refusal to recognize the act and the placement of the person under the protection of the law. In any case, as a compromise formula, the adopted convention recognizes in a separate article the obligation of States to investigate acts as defined by Article 2 of the Convention (which provides the definition of enforced disappearance) committed by persons or groups of persons acting without the authorization, support or acquiescence of the State.^[106]

Argentina also supported the need to ensure that enforced disappearances would be considered an offence under criminal law. Its position contrasted with that of other States, which preferred to have the flexibility to include a crime as an independent offence or not. In the end, the crime was considered an independent one in the adopted convention, and States parties are obliged to incorporate this crime into their national laws.^[107]

Argentina also spoke out in general support of including enforced disappearance as a crime against humanity in accordance with international law, as it was finally included in the adopted convention.^[108] The South American country also explained in detail during negotiations the national experience in relation to superiors who ordered the crimes and the importance of ensuring that these persons assume criminal responsibility for such acts, as was finally established in the convention.^[109] Negotiations in the third session also discussed attenuating circumstances (e.g. helping to find the victim alive) and aggravating circumstances (e.g. the commission of enforced disappearance of pregnant women or children), which were included in the adopted convention.^[110]

Regarding the statute of limitations, the Chair’s proposal was indeed a very good one, and Argentina strongly supported it. It was to depend on national legislation, but it should be substantial; proportional to the serious nature of the crime; and should operate only after the establishment of the fate of the disappeared person. This is because it is a crime of a continuous nature that only ceases when it is possible to establish the fate of the disappeared person. The adopted convention included this provision, and it was a victory for the protection of victims of this horrendous crime.^[111]

Negotiations during the third session also included provisions on issues such as jurisdiction; extraditions; and judicial cooperation, which generated less debate than other provisions and, consequently, were included, with some changes, in the adopted convention.^[112] In contrast, provisions regarding specific conditions of detention (including the express prohibition of secret detention, access to information on detained persons, training of law enforcement personnel, and ways to ensure the effective release of people following their detention), all key aspects of the subject under negotiation, resulted in a long and exhausting debate. Argentina and other delegations made proposals to ensure that these provisions were as strict and complete as possible, as a means to prevent enforced disappearances. Many of these proposals were included in the final version of the adopted convention.^[113]

Negotiations in the third session also focused on the victim. Argentina and other States supported the inclusion of a broad concept, which included not only the disappeared person but also any individual who has suffered harm as direct a consequence of this crime. This concept was included as such in the adopted convention.^[114]

Immediately after the discussions on the victim, Argentina—seconded by many other States—strongly supported the inclusion of the right to the truth. Some others preferred to refer to the obligation of States to inform about the fate of the disappeared. In the end, the Argentine position prevailed, and the right to the truth was also enshrined in the operative part of the adopted convention.^[115] In a separate paragraph of the same provision, negotiations also covered the right to reparation, which includes restitution, rehabilitation, satisfaction and guarantees of non-recurrence. Those elements were finally included in the adopted convention.^[116]

The final version of the convention also included other relevant provisions that Argentina supported.^[117]

The discussion during the third session of the working group related to a series of proposals to criminalize the appropriation of children subject to wrongful removal. It also criminalized the falsification or concealment of the true identities of those children. It included the right of children to their identity and the obligation of States to consider void the adoptions made under those circumstances. These proposals were firmly supported by Argentina and Uruguay. The latter helped the chairperson with a formula which included all elements in a single article and was included in the adopted convention.^[118]

The last part of negotiations considered the functions of the future treaty body in charge of monitoring the provisions of the convention.^[119] Indeed, the main negotiations of the fourth session were based on the functions of the future Committee on Enforced Disappearances, composed of ten experts with a four-year mandate, elected by a specific conference to that end, as was finally agreed and reflected in the adopted convention.

The working group also agreed that the committee would cooperate with all UN mechanisms and human treaty bodies related to the issue. ^[120] There was also consensus on including a reporting mechanism and the individual and inter-State procedures as functions of the new committee.^[121] The convention, as one of the most modern instruments of international human rights law, also included other functions for the new committee, such as country visits or the possibility of alerting the GA in cases of a systematic practice of enforced disappearance. ^[122]

Argentina supported all these functions of the new treaty body and emphasized, together with Chile and Italy, the continuous nature of the crime, in particular in relation to the rights to the truth, justice and reparations.^[123]

Later, there was a discussion about the possibility of establishing or not a new treaty body in light of the proposal by the then High Commissioner of having a single treaty body for all human rights treaties. Argentina affirmed that it was premature to accept that proposal and promoted an autonomous treaty body. This option prevailed in the adopted convention.^[124]

During the last discussion on the entire text, the United States was particularly active regarding the first part of the instrument on the substantive issues. It spoke out against the right to the truth and indicated that it preferred to include the right to information. It also highlighted the difficulty for a federal country of including the crime as an independent one; it proposed the deletion of the article on enforced disappearances as a crime against humanity; and opposed the provision on the statute of limitations because of its federal system. None of these proposals were taken on board by the French Chairperson.^[125]

Negotiations ended with an expression of special gratitude to Ambassador Mr. Bernard Kessedjian, the French Chairperson, who was particularly committed to adopting a strong and valuable convention, as was finally the case.^[126] The convention was finally adopted a year later at the Human Rights Council and the General Assembly, and entered into force in 2010. Argentina was the second State in the world to ratify the convention—after Albania—and made a declaration voluntarily accepting the competence of the committee to receive individual and inter-State communications.^[127]

III.5.4.2 Human Rights Council resolutions on the issue, including the mandate of the Working Group on Enforced or Involuntary Disappearances

As mentioned before, France promoted the establishment of a Working Group on Enforced or Involuntary Disappearances, which was finally established by the former Commission on Human Rights on 29 February 1980.^[128] It was the first thematic mandate of the Commission, and it was composed of five members from different regions, who were in charge of assisting families in determining the whereabouts of persons who have disappeared.

The mechanism has been a channel between families and States. It receives communications and keeps them pending until the fate or whereabouts of the disappeared person are known. The Working Group monitors the implementation of the 1992 Declaration on Enforced Disappearances; conducts country visits; and provides advisory services.^[129] Since the entry into force of the Convention against Enforced Disappearances in 2010, the Working Group and the Committee have coexisted, as with other thematic human rights issues, with a different scope.

When, after negotiations and the adoption of the Convention against Enforced Disappearances in 2006, France proposed to Argentina that they share the leadership of its traditional resolutions in the Human Rights Council on enforced disappearances, Argentina accepted willingly. It was an important recognition of its commitment to the protection of human rights, in particular in the fight against enforced disappearances, both at the national and international levels, especially taking into consideration its dark past of human rights violations.

Thus, many Council resolutions were led by France and Argentina. To make it a cross-regional initiative, gradually Morocco and Japan also joined the initiative as co-sponsors a few years later. There have been two kinds of resolutions on the issue: thematic resolutions and resolutions extending the mandate of the Working Group every three years.

The thematic resolutions of the Council to date were negotiated and adopted under the leadership of both Argentina and France in 2009,^[130] 2010,^[131] and 2012.^[132] These thematic resolutions dealt with a number of issues, including the need for States to cooperate with the Working Group; the promotion of the signature and/or ratification of the Convention against Enforced Disappearances; and the establishment of 30 August as the International Day for the Victims of Enforced Disappearance.

Resolutions extending the mandate of the Working Group were adopted in 2008,^[133] 2011,^[134] 2014,^[135] 2017^[136], and more recently in 2020.^[137] In these resolutions, there is a clear and precise mandate for the Working Group as well as political support for its work regarding thousands of cases in different regions of the world and also for its general comments on different issues, such as the right to the truth.

III.5.4.3 Assessment of the contribution of Argentina and France in the field of enforced disappearances

In the last forty years, much has been done to protect persons from enforced disappearances at the international level. France introduced the issue at the Commission in the 1980s and has been a great promoter of the initiative ever since. For its part, Argentina, during its last dictatorship, was one of the reasons for the establishment of a mandate concerning enforced disappearances in the former Commission. However, since its return to democracy in 1983, it has undergone a great transformation and become the main supporter of the fight against enforced disappearances at the United Nations. It has clearly contributed to the recognition of this serious crime in international human rights law. This is probably one of the best examples of how a country can turn from a negative to a positive example in relation to the same specific human rights issue.

Indeed, Argentina, in conjunction with France, contributed to the development of international human rights law in the field of enforced disappearance through the elaboration, negotiation and adoption of the convention on the issue. After the adoption of this instrument, both countries jointly led an international campaign for its ratification.^[138]

The Convention against Enforced Disappearances entered into force in December 2010, and the Committee began its work, first establishing how it would deal with all its functions, and later monitoring the international obligations of State parties to the instrument.

In its first years of work, this new treaty body has been helping to fill the gaps on issues relating to enforced disappearances. For instance, it made a broad interpretation of Article 35 of the Convention in relation to the reporting mechanism, emphasizing the need to address the full range of obligations under the Convention at present.^[139] It also had its first individual communication, which concerned Argentina, where it established that the duration of an enforced disappearance is not relevant to it being qualified as such.^[140] Moreover, recently, the committee adopted guidelines on the search for disappeared persons, which will probably be a useful tool in the field. Argentina joined other States and stakeholders in providing inputs that contributed to the elaboration of this set of guidelines.^[141]

On the other hand, the Working Group, the first thematic mandate that has been operating for the last four decades, has extensive and valuable experience in contributing to the identification of disappeared persons and providing relief for their families. Even today, this mechanism deals with thousands of cases of disappearances still pending clarification, country missions and the elaboration of general comments. It remains a valuable tool for many countries, in particular for those that have not yet ratified the Convention against Enforced Disappearances and experience serious cases of enforced disappearances.

III.5.5 Business and human rights

III.5.5.1. The establishment of a Secretary-General Special Representative on the issue. A cross-regional initiative

In 2003, the former Sub-Commission adopted a resolution related to business and human rights,^[142] whereby it approved the draft norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights.^[143] It was part of the Sub-Commission’s work to prepare future instruments, which could be negotiated and adopted by the Commission at a later stage. This did not happen this time because there were a number of controversial issues. The main one was the role of non-State actors in human rights, because international human rights law only attributes responsibility to States for human rights violations. Any other abuse of human rights could not be framed in the same way. Another problem was how to deal with extraterritoriality in cases where the responsibility is attributed to companies that commit abuses outside their country of origin.

Beyond conceptual differences such as the examples mentioned above, there was also disagreement as to how to move this issue forward. Many States—in particular from the North—were not convinced about the need to promote law-making initiatives on the issue, while other countries considered that it was necessary to do so with a view to addressing abuses committed by multinational corporations in developing countries. As a way of reaching a consensual decision, Argentina joined a cross-regional group originally formed by the United Kingdom—later replaced by Norway—the Russian Federation, India and Nigeria.

This cross-regional group adopted a traditional approach in terms of the responsibility of State actors for human rights violations, but at the same time recognized that the responsible operation of transnational corporations and business enterprises can assist in channeling the benefits of business and can contribute to the enjoyment of human rights, inter alia, through investment, employment creation and the stimulation of economic growth.^[144]

Following the adoption of the first resolution in 2004 in the Commission and a report of the OHCHR,^[145] in 2005 the cross-regional group submitted an initiative to create a Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises for two years. This mandate-holder would be in charge of identifying and clarifying international standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights; elaborating on the role of States in regulating the issue; researching and clarifying the implications for transnational corporations and other business enterprises of concepts such as “complicity” and “sphere of influence”; developing materials and methodologies for undertaking human rights impact assessments of the activities of these companies; and preparing a compendium of best practices of States and companies.

This initiative was adopted by the Commission on Human Rights by 49 votes in favor, 3 against and 1 abstention.^[146] John Ruggie was appointed as Special Representative.^[147]

Ruggie not only submitted reports to the Commission and the GA as part of his mandate, he also contributed to the UN Global Compact framework adopted by then Secretary-General, Kofi Annan, on 12 August 2005—a public-private and multi-stakeholder process that intended to mobilize a global movement of sustainable companies so as to contribute to international goals, including human rights, labor, environment, and anti-corruption. The initiative has developed and adapted its governance framework in line with the 2020 Global Strategy and the UN 2030 Agenda for Sustainable Development.^[148]

III.5.5.2 The extension of the mandate of the Special Representative

In 2008, the cross-regional group, including Argentina, promoted the renewal of the mandate of the Special Representative, the first initiative on the issue in the newly established Human Rights Council. The group held several meetings in different formats, including some encounters with the mandate-holder, in order to decide the content of the resolution and the specific needs to move the issue forward. Finally, the group was able to push for the adoption of a Council resolution, after constructive negotiations with different stakeholders, including those which did not support the first initiative. This time, the result was a text adopted by consensus.^[149]

In the resolution, the Council highlights that enterprises have to respect human rights, expresses concern about the difficulties of mitigating the consequences of globalization on vulnerable economies and stresses the need to make efforts to address governance gaps in this regard.^[150]

The resolution also welcomes the report of the Special Representative, in particular the identification of a framework based on three principles: the State duty to protect all human rights from abuses involving transnational corporations; the responsibility of business enterprises to respect human rights; and the need to have remedies. Moreover, the resolution recognizes the need to implement this framework and welcomes the wide range of consultations made by the mandate-holder.^[151] Through this resolution, the Council decided to extend the term of the mandate for three years to promote the framework proposed by the mandate-holder.^[152]

III.5.5.3 The Guiding Principles on Business and Human Rights

After working on the framework based on three principles: namely, protect, respect and remedy; making exhaustive consultations with different stakeholders in different regions of the world; and taking into consideration the results of the process called Global Compact; the mandate-holder submitted for consideration of the Human Rights Council the “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework” (Guiding Principles on Business and Human Rights).^[153]

The Guiding Principles were structured on the basis of the three parts of the above-mentioned framework. The first part of the Guiding Principles is related to the State responsibility to protect. This part includes two founding principles. The first, on the responsibility of States in relation to human rights abuses within their jurisdiction by third parties, including business enterprises. This responsibility involves the obligation of the State in terms of prevention, investigation, punishment and redress. The second founding principle is the obligation of States to establish the requirement for all business enterprises domiciled in their jurisdiction to respect human rights throughout their work. These founding principles are accompanied by operational principles to guide measures to be taken by States in order to fulfill their obligations in this regard.^[154]

The second part of the guiding principles is related to the corporate responsibility to respect human rights. The first founding principle in this second part affirms that the enterprises have to respect human rights and, as a consequence, should refrain from activities that could affect them and should deal with the adverse impacts that they could have on them in performing their activities. This responsibility includes respect for the human rights contained in the rights set out in the ILO Declaration on Fundamental Principles and Rights at Work and also in the Universal Declaration, and the 1966 Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights.^[155] The second founding principle of the second part resides in the affirmation that the responsibility to respect human rights includes the need to avoid negative impacts on human rights when performing their activities and to address them if they exist. The third founding principle is that this instrument should be applied to all enterprises without exception.^[156] The fourth founding principle is that enterprises should have a policy to respect human rights; establish a human rights due diligence process and should have in place processes to remedy negative human rights impacts of their business operations. To contribute to the implementation of these four founding principles related to the second part of the guiding principles, the document provides for operational principles.^[157]

The third and last part of the Guiding Principles is related to access to remedies. It establishes one single founding principle: States have the obligation to ensure remedies—e.g. judicial measures—to protect individuals from business-related human rights abuses. The document includes operational principles to ensure that this obligation is implemented through State judicial and non-judicial grievance mechanisms as well as non-State grievance mechanisms—which are the ones that could be implemented for instance by enterprises alone—or through international or regional human rights bodies.^[158]

III.5.5.4 The establishment of a Working Group and a Forum on Business and Human Rights

The cross-regional group, including Argentina, continued its work on the issue of business and human rights at the end of 2011. Ruggie ended his valuable work with the submission of a last report and the presentation of the Guiding Principles. After numerous consultations with different formats and at different levels, the cross-regional group decided to promote a new initiative in the Council.

As a result, the Council adopted HRC Resolution 17/4, whereby it endorses the Guiding Principles on the issue”. Moreover, it commends the Special Representative for his work.^[159] In this context, for this new stage, the Council decided to replace the Special Representative by a Working Group on Transnational Corporations and Other Business Enterprises, composed of five experts from all regions of the world, to promote the Guiding Principles; exchange good practices; provide support; promote capacity-building; and conduct country visits; among other functions.^[160]

The resolution also establishes a Forum on Business and Human Rights to discuss issues related to the implementation of the Guiding Principles. The forum is open to different stakeholders, including enterprises, and holds one two-day session per year.^[161] Finally, the resolution requests the Secretary-General to prepare a report on the work of the UN on business and human rights. ^[162]

One year later, in 2012, a new resolution promoted by the cross-regional group was adopted by the Council as HRC Resolution 21/5. This resolution focuses on the report of the SG on the contribution of the UN system as a whole. In this regard, it underscores the need to adopt a strategic approach to guarantee the integration of business and human rights into relevant aspects of the UN; recognizes the role of the new working group and of resident coordinators and country teams of the UN to implement the Guiding Principles; encourages relevant entities of the UN to apply the Guiding Principles and to develop training and capacity building with relevant stakeholders to this end; and requests a report of the Secretary-General and a study to explore the establishment of a global fund to enhance the capacity of stakeholders to advance the implementation of the Guiding Principles. It also decides to organize a panel discussion on business and human rights in the Human Rights Council.

III.5.5.5 The extension of the mandate of the Working Group and a new initiative on a future treaty on transnational corporations

In 2014, the cross-regional group, including Argentina, promoted a new initiative in the Human Rights Council to renew the mandate of the Working Group on Human Rights and Transnational Corporations and Other Business Enterprises. The resolution, like all other initiatives on this issue during the Council era, was adopted by consensus and, as a result, the Working Group saw its mandate renewed for three years.^[163]

The resolution also acknowledges the important role of national plans; recognizes the need to enhance remedies; recognizes the implementation of the Guiding Principles; welcomes the decision of the Working Group to develop a database with the level of implementation of the Guiding Principles; requests OHCHR to prepare a report on legal options for remedies; and extends the annual work of the forum.

At the same Council’s session, Ecuador and South Africa promoted another initiative also relating to the question of business and human rights, which led to the adoption of a resolution by vote with a clear division in positions: 20 in favor (African States plus other States including Ecuador, Cuba, Venezuela, Russia and China), 14 against (European countries, and other States including the United States and Japan) and 13 abstentions (Argentina, Brazil, Chile, Costa Rica, Mexico, Peru, Botswana, Gabon, Kuwait, Maldives, Saudi Arabia, Sierra Leone and United Arab Emirates).^[164]

The main goal of the resolution promoted by Ecuador and South Africa was to establish an Intergovernmental Working Group in charge of the elaboration of a legally binding instrument to regulate the activities of transnational corporations and other business enterprises in international human rights law. The decision of the main sponsors to push for the adoption of the resolution without exhaustive consultations with the cross-regional group and the rest of the members of the Council ended with the consensus approach on the issue of business and human rights that had existed in the Council since its creation. The initiative returned in a sense to the original proposal of the Sub-Commission in this regard.

Irrespective of the divisive approach, there is merit in considering an international human rights treaty relating to business and human rights because of the impact of enterprises. On the other hand, there are also major challenges in doing so, such as defining the role of non-State actors in terms of responsibility for human rights violations. It is still a well-established principle of international human rights law that States are the only subjects of responsibility in terms of human rights violations. Even though human rights abuses perpetrated by non-State actors have been recognized in soft law (i.e. resolutions of the Commission and the Council), for the time being this development has not modified the main principle in an instrument of a binding nature. Another main challenge is how to implement an instrument of this nature at the national and international levels.

The Working Group has had six sessions up to mid-2020. The first session was held in July 2015. During that session, the then Deputy High Commissioner recalled the responsibility of enterprises when human rights have been abused, as recognized by the Guiding Principles, and indicated that there was no incompatibility between the efforts made until that moment and the discussion on a future treaty. In general statements, the EU emphasized the importance of the Guiding Principles as well as the need to consider all enterprises, while some other States supported the initiative as it was presented by the main sponsors. There were also expert panels and the participation of the Special Rapporteur on Indigenous Peoples, who supported the idea of developing a treaty.^[165] The second session was held in October 2016. It had a segment of general interventions and expert panels on different issues.^[166]

The third session was held in October 2017 and delegations discussed some elements proposed by the Chairperson. Two main positions were expressed: those States which considered that such an initiative was premature and those States which found it essential to move forward. The Chairperson decided to request comments from all stakeholders with a view to submitting a draft legal instrument on the issue.^[167]

In its fourth session, in October 2018, the President submitted a zero draft of a legally binding instrument and also a draft of an optional protocol which was the basis for discussions.^[168] In its fifth session, in October 2019, the Chair of the WG submitted a revised text, which was considered by participants, who made observations and proposals on the text.^[169] The last session to date took place recently, in October 2020,^[170] and the issue will continue to evolve in the future.

III.5.5.6 Latest Human Rights Council resolutions on business and human rights

In parallel to the process initiated towards a binding instrument, the cross-regional group continued its consensus approach in the Council. In 2016, in a resolution adopted without votes, the Council focused on improving accountability and access to remedies in cases of business involvement in human rights abuses.^[171]

Indeed, in the 2016 resolution, the Council welcomes the work of OHCHR on accountability and access to remedies; recognizes the implementation of the Guiding Principles; encourages States to consider the level of effectiveness of local legislation on remedies; invites States to develop a strategy on the issue; calls on business enterprises to respect the Guiding Principles and to publicly share the information regarding their human rights policies and procedures to enhance stakeholder engagement with respect to business operations and prevention measures that businesses can take; recognizes the work of the Working Group on Transnational Corporations and Other Business Enterprises; and requests OHCHR to convene consultations on State-based non-judicial mechanisms for issues which are related to a cross-border context.^[172]

Moreover, in 2017, the group pushed for the adoption of a new Council resolution, A/HRC/35/7, which, among other things, recognizes the work of the Working Group on Business and Human Rights and of the Forum. In this context, this Council resolution extends the mandate of the Working Group for three years.^[173] Later, in 2018, the Council, adopted a new resolution which, among other things, requests the Working Group to analyze the role of national human rights institutions in facilitating access to remedy for business-related human rights abuses and to OHCHR to continue its work in this area.^[174] Finally, in 2020, the last resolution adopted by the Council to date on the issue extends the mandate of the Working Group again for three years.^[175]

III.5.5.7 Assessment of the work of the cross-regional group on business and human rights

Much has been done since 2005, when the first resolution was submitted in the former Commission. The first mandate-holder created by the Council, and promoted by the cross-regional group, including Argentina, was able to elaborate the Guiding Principles, which have emerged as a very useful tool to implement measures against transnational corporations and other business in cases of human rights abuses.

Since then, many countries—e.g. from Europe and North America—have implemented national action plans that are based on the Guiding Principles on Business and Human Rights. The objective of these plans is to promote transparency and accountability for activities performed by transnational corporations themselves or through third parties in their countries of origin and abroad. France has even enacted legislation on the issue of due diligence of enterprises.^[176]

The approach chosen by Ruggie in the principles was one of consensus, founded on three pillars. These are not the traditional State obligations in relation to human rights—i.e. respect, protect and fulfill. Instead, they are adapted to the reality of the important power of transnational corporations and their potential to produce serious human rights abuses, such as modern forms of slavery, trafficking, terrible damages to the environment or dissemination of information about their clients, which affects their right to privacy.

As we have seen, the first principle focuses on the State duty to ensure that enterprises do not affect human rights in its jurisdiction. The second principle of the Guiding Principles relates to the duty on the part of enterprises to respect human rights. Although the set of Guiding Principles on Business and Human Rights cannot be considered an international legal obligation, it represents a useful tool to encourage many important business enterprises to develop their own codes of conduct. This responsibility entails the need to avoid human rights abuses and also to pay due diligence to the action of third parties in the whole trade chain, in particular in cases of enterprises operating globally. Finally, the third pillar is related to remedies. The State has the obligation to provide mechanisms in this regard, as described above.

Once the Council had adopted these Guiding Principles, the cross-regional group continued its commitment towards their implementation through the establishment of a new special procedure at the Council, the Working Group on Business and Human Rights. This initiative now co-exists with the one advocated by Ecuador and South Africa with respect to elaborating a human rights treaty, still under negotiation, which so far at least has not been able to reach consensus.

In sum, the cross-regional group, including Argentina, has contributed in the last few years to the elaboration of international standards on the protection of human rights in relation to the activities of business enterprises. This has had a practical impact in many countries, which have adopted measures in line with the Guiding Principles, and even in transnational enterprises, some of which have adopted their own codes of conduct to respect human rights. It seems highly probable that the issue will continue to be developed in the universal system in the next few years.

III.5.6 The effects of foreign debt on human rights, in particular the activities of vulture funds

III.5.6.1 A Cuban initiative: the mandate on foreign debt and human rights

Cuba was effectively leading the issue of the effects of foreign debt on human rights, in particular economic, social and cultural rights, in the Human Rights Council long before Argentina decided to introduce an initiative on the impact of vulture funds on human rights in the context of foreign debt. Indeed, the Central-American country introduced this initiative in the Commission more than two decades ago.

In 1997, the Commission established the mandate of the Independent Expert on structural adjustment policies and, a year later, in 1998, the same body created the mandate of the Special Rapporteur on the effects of foreign debt on the full enjoyment of economic, social and cultural rights. In 2000, both mandates were merged in what became an Independent Expert on structural adjustment policies and foreign debt in the full enjoyment of all human rights, particularly economic, social and cultural rights. In 2005, the Commission replaced the reference “effects of structural policies” with “effects of economic reform policies”.^[177]

After the institution-building process of the Council, Cuba pushed for the adoption of a resolution whereby the mandate was renewed in the new body but its name and scope were changed. The mandate-holder was then named “Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights.” ^[178] Among his activities, the expert prepared the Guiding Principles on Debt and Human Rights,^[179] which were endorsed by Human Rights Council Resolution 20/10 of June 2012.

Thus, for more than two decades, the issue was included in the UN human rights agenda, including the analysis of the legal framework of international human rights law applicable in this regard—e.g. the International Covenant of Economic, Social and Cultural Rights. It was also raised in the concluding observations of various treaty bodies, which have highlighted the consequences that foreign debt posed for the enjoyment of human rights, in particular in developing countries.^[180]

Even though the impact of foreign debt and human rights is quite strong in heavily indebted developing countries—and affects many essential human rights such as the rights to food, to health, or to education—^[181] a number of Western countries rejected the consideration of the issue in the Council, arguing that it should be dealt with in another forum. The decision to oppose this initiative taken by EU countries and the US has been criticized by scholars, mainly because it affects the universality, interdependence and inter-relatedness of all human rights, to the detriment of economic, social and cultural rights.^[182] In this context, all resolutions on the issue have been adopted by vote, with a vast majority voting in favor, in particular States from Latin America, Africa and Asia.

III.5.6.2. The main activities of the mandate-holder in relation to vulture funds until 2014. The mandate-holder’s mission to Argentina and a thematic report

The work of the independent expert on the issue has been extensive. Nevertheless, as the object of the present study is Argentina’s contribution to the impact of foreign debt and human rights, in particular the activities of vulture funds, since the establishment of the Council, I will only focus on two main activities of relevance in this regard.

First, the mandate-holder made a specific report on the effects of the activities of vulture funds on debt relief and on the fulfillment of human rights in 2010.^[183] In the summary of this report, he affirmed that measures to relieve debt in heavily indebted poor countries (HIPCs) have helped to channel those resources towards social spending essential for the observance of human rights—e.g. health care, education. At the same time, the mandate-holder recognized that the non-binding nature of debt relief measures provided the chance for some creditors to affect those efforts and recover the full value of debt through litigation in the courts.

In this context, later in the report, the Independent Expert referred to a specific category of creditors known as “vulture funds”. He defined these funds as private entities that buy defaulted or distressed debts in order to achieve high earnings. These funds generally acquire the debts of developing or least developed countries on the secondary market at a price much lower than their real value and, at a later stage, seek repayment of the full amount, in addition to other sums, including interest and legal fees. They do so using different strategies, including political pressure, litigation and seizures. There is no limit to the amount of profits that these funds can obtain in this context.^[184]

After describing a few national cases where human rights were severely affected by the activities of vulture funds^[185] as well as initiatives taken to mitigate the problem,^[186] the mandate-holder concluded that the excessive claims made by vulture funds against poor countries with unsustainable levels of debt affect their capacity to guarantee economic, social and cultural rights, including the rights to health, education and adequate housing.^[187] Among the recommendations, the Independent Expert indicated that there should be legally binding standards related to the debt issue at the international level, including limits on the rights of creditors to assign debt obligations to third parties .^[188]

The second activity to highlight in relation to the activities of vulture funds and their impact on human rights is the expert’s mission to Argentina. It is not surprising that the then mandate-holder on foreign debt, Cephas Luminas, decided to visit the South American country, taking into consideration the enormous foreign debt which led Argentina to a default in 2001, with really devastating economic and social consequences. This visit took place in 2013 and, in the summary of the report, the then Independent Expert affirmed that from mid-1998 to mid-2001, Argentina faced a critical recession and that a combination of dubious lending and policy implemented by the International Monetary Fund (IMF)—and not careful lending from international credit markets—plus a global recession led Argentina to a big default with terrible consequences for its population. Argentina promoted debt restructurings in 2005 and 2010, which significantly reduced its debt and provided some space to guarantee human rights. Indeed, the expert describes how, from 2002 to the moment the report was issued, Argentina recorded significant economic growth, with an increase in social spending. The result was a considerable decrease in the level of poverty and unemployment, although the level of inflation remained high. These achievements commended by the expert were recorded at what was a difficult time for the country, which faced problems accessing foreign capital markets and a long litigation with vulture funds abroad.^[189]

The expert also recalled that much of Argentina’s debt was contracted during its last dictatorship and considered that those who lent money to the regime should accept their responsibility and help to cancel the debt. At the same time, the expert called on Argentina to conduct a transparent debt audit to promote accountability in its debt management and strategies to protect human rights.^[190]

In the report, Luminas referred to Argentina’s challenges on the issue in 2013 and affirmed that, among other factors, as a result of the refusal by a minority of creditors to participate in debt restructurings, Argentina encountered obstacles accessing capital markets. The expert also described a litigation by a group of vulture funds that the South American country was facing at the time in a United States court.^[191] In this context, Luminas supported the need to limit the margin of action of unscrupulous investors and to enact legislation following the example of other countries such as the United Kingdom.^[192]

Finally, the report concluded with recommendations to Argentina and to the country’s international lenders, including the need to promote norms to combat litigation from vulture funds.^[193]

III.5.6.3 Human Rights Council resolution on vulture funds and their impact on human rights

Argentina’s position on foreign debt and human rights has changed over time. From the establishment of the Human Rights Council until 2016, the South American country voted in favor of all resolutions promoted by Cuba on this issue, both the thematic resolutions as well as those relating to the renewal and scope of the mandate of the independent expert.

In 2014, in the context described by Luminas during his mission to Argentina, the South American country decided to submit a new initiative in the Council regarding the impact of the activities of vulture funds on the enjoyment of human rights. This initiative was fully in line with the efforts of Argentina at the GA level towards the fair regulation of sovereign debt processes. Indeed, a few resolutions were submitted by the G-77 plus China from 2014 and led to the adoption of the Basic Principles on Sovereign Debt Restructuring Processes in 2015 with 136 votes in favor, 41 abstentions and 6 votes against.^[194]

In the Council, however, the emphasis was placed on the human rights dimension of the problem. The resolution promoted by Argentina was entitled “Effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights: the activities of vulture funds” and was adopted by vote with the support of a large majority: 33 in favor, 5 against and 9 abstentions.^[195]

The main reason put forward by some Western countries during negotiations for opposing the resolution was based on the argument that it was not the right forum in which to discuss it. In any case, in a different forum dealing with the issue from a wider perspective, at the GA level, many of these States also voted against the resolution that adopted the principles on debt restructuring.

The preambular part of the Council resolution recalls international human rights instruments; recalls GA resolution 68/304 related to the framework on the restructuring of sovereign debts; and reaffirms all resolutions on foreign debt and its impact on human rights adopted by the Commission and the Council.^[196]

The preambular part also welcomes the report of the Independent Expert on the issue of vulture funds described above; affirms the importance of avoiding the possibility that vulture funds could stop the debt restructuring efforts affecting the State’s right under international law to protect its people; recognizes that States have a sovereign right to restructure their debt; affirms that the payment of foreign debt contributes to hunger and poverty; encourages States and other stakeholders to consider the Guiding Principles on Foreign Debt and Human Rights; notes the lack of regulation on the issue; expresses concerns that vulture funds take advantage of the voluntary nature of debt relief processes; and takes into account that vulture funds, through litigation and other means, affect the capacity of States to comply with their human rights obligations.^[197]

The operative part of the resolution condemns the activities of vulture funds for the effect that the repayment to those funds has on human rights obligations of States; reaffirms that vulture funds illustrate some of the problems of the financial system, which affect human rights in debtor countries; promotes the participation of all countries in designing a framework to restructure sovereign debt, which was later agreed in 2015 at the GA level; and requests the Advisory Committee to prepare a research-based report on the issue and to seek the views of different stakeholders for the preparation of this report.^[198]

III.5.6.4 The research report of the Advisory Committee on the issue

In 2016, the Advisory Committee submitted a research-based progress report to the Council, taking into consideration the contribution of different stakeholders.^[199] The research-based progress report echoes the definition of vulture funds provided by then Independent Expert on foreign debt in his thematic report, and elaborates further on these funds. The Advisory Committee also clarifies that these private hedge funds are not lenders; they obtain distressed debt at discounted prices, in secondary markets, and then sue the debtor for a much higher amount. Moreover, according to the Committee, the vulture funds target distressed economies with challenges for legal defense; refuse to participate in restructuring processes; sue the country for very high amounts; try to enforce the decision in jurisdictions where they can win their case; have exorbitant profits; and use jurisdictions which allow financial secrecy.^[200]

Moreover, the research-based progress report addresses case studies, including Zambia, Democratic Republic of Congo and Argentina. It also focuses on disruptive litigation, a general trend towards obtaining exorbitant profits, with African and Latin American countries being those most affected. The new trend indicates that almost all lawsuits are now against middle-income countries. In addition, as a positive trend, the report describes the cases of Belgium and the United Kingdom, which have national legislation discouraging disruptive litigation by vulture funds in their jurisdictions.^[201]

The report also describes awareness- raising on the problem at the international level and the growing consensus towards condemning the abuses of these funds, such as pronouncements of the Parliamentary Assembly of the Council of Europe and Meetings of the G77 and China.^[202]

The document also describes how the activities of vulture funds undermine States’ capacities to comply with essential obligations regarding economic, social and cultural rights—e.g. health, water and sanitation, food, housing and education. It also describes how the vulture funds jeopardize poverty reduction measures and how they contribute to increased debt service. In this context, the Advisory Committee concludes that:

[…] vulture funds are inherently exploitative, since they seek to obtain disproportionate and exorbitant gains at the expense of the full realization of human rights, particularly economic, social and cultural rights, and the right to development. Seeking the repayment in full of a sovereign debt from a State that has defaulted, or is close to default, is an illegitimate outcome. In a debt crisis, more than financial obligations are at stake.
The duty to observe due diligence to prevent a negative impact on and potential violations of economic, social and cultural rights applies to all States and stakeholders, including the management of vulture funds. Therefore, assessments of the impact of their activities on the enjoyment of economic, social and cultural rights should be made systematically […]^[203]

The Advisory Committee also makes recommendations to the Council, including to keep the issue on the agenda and to study good practices further. It also advises Member States to pass legislation on the issue and to adopt measures to limit disruptive litigation by vulture funds within their jurisdictions. In addition, it refers to the need to adopt measures to guarantee that vulture funds pay taxes and ensure that adjudication bodies make a proper assessment of the bona fide in the event of claims by vulture funds.^[204]

III.5.6.5 Current state of the initiative on the impact of the activities of vulture funds on human rights at the Council and Argentina’s contribution in this regard

Before the presentation of the research-based progress report of the Advisory Committee, there was a change of Administration in Argentina in December 2015. In 2016, the new Government decided to pay the remaining foreign debt related to the 2001 default, ending a long-standing litigation with the remaining creditors, which constituted a minority of the total number of creditors existing at the time of default.^[205]

The issue at the Council, however, continued beyond the Argentine case. Indeed, the Independent Expert on foreign debt and human rights—whose mandate was renewed again in 2017 through a resolution promoted by Cuba—^[206] addressed the consequences of sovereign debt restructurings and the role of the investment procedures in two recent reports.^[207]

In the same resolution that extended the mandate of the Independent Expert in 2017, the Council requested the Advisory Committee to present a final report on vulture funds in a successive Council session.^[208] By the time this resolution was adopted at the Council, Argentina was an Observer State and, consequently, did not vote. In a thematic resolution adopted by vote in March 2018, the Council took note of the progress report prepared by the Advisory Committee and indicated that it expected the final one for the June session of 2019.^[209] In a new thematic resolution on foreign debt and human rights promoted by Cuba, and adopted by the Council by vote in March 2019, there is a new reference taking note of the work of the Advisory Committee on vulture funds and expecting the report to be submitted later that year.^[210] In this last resolution, Argentina was again a Member State of the Council but changed its position and voted in abstention on the Cuban initiative.

As expected, in 2019, the Advisory Committee issued its final report on vulture funds in which, among other things, it recommended that the Council follow up and adopt a new resolution on the issue.^[211]

In this context, the role of Argentina and Cuba was key to the development of the study on the impact of the activities of vulture funds on the enjoyment of economic, social and cultural rights. In this case, once again, Argentina promoted international standards on an issue of relevance at the domestic level. Since December 2019, there has been a new Administration and Argentina has returned to its previous position and decided to support the renewal of the mandate of the Independent Expert during the HRC 43rd session in June 2020.^[212] It remains to be seen if there will be a follow-up on the issue as requested by the Advisory Committee in its report.

III.5.7 Human rights of older persons

III.5.7.1 A growing interest in the issue of older persons at the UN level

The need to protect older persons has been part of the international agenda since at least the 1980s. In 1982, the GA endorsed the Vienna International Plan of Ageing, adopted at the First World Assembly of Ageing.^[213] Two decades later, in 2002, the GA also endorsed the Political Declaration and Madrid International Plan of Action, adopted in the Second World Assembly of Ageing.^[214] Moreover, in 1991, the GA adopted the UN Principles for Older Persons.^[215] In the same direction, since the establishment of the Human Rights Council, the issue has also been addressed by some Council mechanisms.^[216]

The tendency to look into the rights of older persons has continued to grow in the present decade. The GA also created a Working Group on Ageing for the protection of the human rights of older persons in 2010.^[217] The Council adopted a resolution whereby it requests the Special Rapporteur on the right to health to prepare a thematic study on older persons.^[218]

Furthermore, in 2012, OHCHR submitted a report on older persons to the ECOSOC.^[219] In this report, the High Commissioner affirms that population ageing is one of the most important transformations of the twenty-first century and indicates that, at that time, the world population was approximately 700 million people, 10 percent of whom were over 60 years old. By 2050, this figure is expected to reach 20 percent.^[220]

All regions of the world will experience this phenomenon: Africa is expected to grow fast, reaching 215 million people by 2050; Western Asia will quadruple its population over 60 years and will reach 69 million in 2050, which will represent an increase of 19 percent; Asia-Pacific will increase from 414 million people in 2010 to 1.25 billion in 2050, an increment of 14 percent; Latin American and Caribbean countries will increase the number of older persons by 15 percent, reaching 188 million; and Europe will reach 236 million by 2050, with an increase of 34 per cent.^[221]

The human rights situation of older persons has not been developed enough either at the national or international levels, despite broad agreement on their vulnerability to isolation and abuse. After an exhaustive description of the human rights challenges faced by older persons, OHCHR concludes that current arrangements to protect them are not enough and proposes that States explore the possibility of elaborating a new international instrument, creating a new special procedure of the Human Rights Council and mainstreaming the issue at the UN.^[222]

In this context, the Human Rights Council adopted its first thematic resolution related to the human rights of older persons in September 2012.^[223] In this document, it refers to the existence of the GA Working Group aimed at strengthening the protection of older persons.^[224] It also notes that older persons suffer multiple forms of discrimination when they are part of different vulnerable groups because of their race, disability or other conditions.^[225] The resolution also requests the High Commissioner to conduct consultations on the rights of older persons with States and other stakeholders and prepare a summary for the Council.^[226]

In conformity with the request, OHCHR convened open consultations on 15 April 2013. Argentina contributed to the event of the High Commissioner by providing a written submission as well as the presentation by the Argentine Director for Policy on Older Persons in the first panel of challenges for older persons.^[227]

The summary concludes that ageing is a universal issue and the group of older persons is growing in all regions. Consequently, action is needed to protect them. Although existing human rights treaties are applicable to them, special needs, including age discrimination, health services, and social protection, require more attention.^[228]

III.5.7.2 The establishment of an Independent Expert on older persons. An Argentine-Brazilian initiative

Following the increasing interest in the need to enhance the protection of older persons at the UN level, Argentina and Brazil decided to push for the establishment of a new mandate on older persons in the Human Rights Council. This initiative took place only a few months after the consultations organized by the OHCHR in conformity with the first resolution on older persons of the Council described above.

In September 2013, the Council adopted a resolution on older persons by consensus.^[229] The resolution recognizes the challenges that older persons face when it comes to enjoying their human rights^[230] and, among other things, calls upon States to take measures on age discrimination, abuse and violence, social integration and health care for older persons.^[231] The resolution also decided to appoint an Independent Expert on older persons, with a mandate to assess the implementation of existing international instruments related to the issue and to search for best practices and implementation gaps; to take into consideration the views of stakeholders; and to promote awareness of the problems suffered by older persons.^[232] The Council requests the Independent Expert to report to the Council on an annual basis and to present a comprehensive report.^[233] Finally, in a clear demonstration of the growing importance of the issue, in the same session, the Council decided that the Social Forum would address the rights of older persons in its meeting during 2014.^[234]

III.5.7.3 Thematic reports of the Independent Expert until 2016

The first annual thematic report of the first mandate-holder, Ms. Rosa Kornfeld-Matte, was issued in 2014.^[235] It focuses on the foundations of the mandate, the context at the international level, international standards and initiatives. In this sense, it affirms that, although there is no specific instrument, many international human rights treaties have implicit obligations towards older persons (e.g. the International Convention on Migrant Workers, Article 7) and a number of treaty bodies have dealt with the issue to a certain extent. It also identifies the existence of provisions in regional human rights treaties and the two world documents of ageing in Vienna and Madrid as well as the existence of mechanisms such as the Working Group on Ageing within the GA.^[236]

In this context, the mandate-holder indicates that the absence of a comprehensive instrument has significant implications (i.e. lack of coherence).^[237] The expert highlights the relevance of a series of human rights, such as non-discrimination and the right to legal personality and capacity.

The second report of the mandate-holder in 2015 focuses on the right to autonomy and care.^[238] According to the mandate-holder, autonomy “[…] is the principle or right of individuals or group of individuals to determine their own rules and preferences […]”^[239]

The term care, according to the report, “[…] aims at maintaining the optimum level of physical, mental and emotional wellbeing and to prevent or delay the onset of disease […]”^[240] In this context, the mandate-holder refers to settings that are key for care, i.e. home and family; quality control and accessibility in care settings as one of the main challenges related to the issue; elder abuse and violence against older persons; geriatric service and palliative care; and the importance of groups of older persons when designing policies, including women, persons with disabilities, among others.^[241]

As for the existing legal framework with regards to autonomy, the second report indicates that this term is a core principle of the International Convention on the Rights of Persons with Disabilities, including the right to make their own choices (i.e. Article 3(a)). The term independence has been mentioned in the UN principles for older persons in relation to the right of older persons to health care, food and water, among other aspects. At the regional level, both the rights to independence and autonomy have been included in the Inter-American Convention on Older Persons, while the Charter of the EU has included the right to independence of older persons.^[242]

Regarding the legal framework of the term care, the UN set of principles on older persons focuses on family, community and institutional care, access to health care and to social and legal services to enhance the autonomy of older persons. The International Convention on the Rights of Persons with Disabilities refers to universal design, which could benefit older persons. At the regional level, there have also been some developments in this regard, including the Inter American system. ^[243]

The second report concludes by referring to the importance for States of having a legal, institutional and policy framework on older persons, as well as the importance of adopting specific measures to protect the rights of older persons to be autonomous and to receive care. ^[244]

The third report of the mandate-holder, issued in 2016, assesses the implementation of existing instruments in relation to older persons, including the 2002 Madrid International Plan of Action on Ageing, identifying best and good practices as well as gaps.^[245] In this document, the mandate-holder concludes that by 2050, for the very first time at the global level, the number of the older persons will be greater than that of children under the age of fifteen. It is essential to guarantee the rights of older persons. Older people face challenges in the areas of care, work, social security, equality, access to justice, and violence, among others.^[246]

The report also recognizes that there are still protection gaps remaining. It recalls that OHCHR had already suggested that the issue requires a special legal instrument of protection and that this same proposal had been discussed in the Working Group on Ageing at the GA level. In this regard, the report welcomes the positive creation of this mandate that allows this important issue to be addressed.^[247]

III.5.7.4 The renewal of the mandate of the Independent Expert

Upon the completion of the work of the mandate-holder in her first three years of mandate, Argentina and Brazil decided to promote the renewal of the mandate on two occasions, in 2016 and in 2019. The work of the mandate-holder has thus continued until the present.^[248]

In its preambular part, the resolution adopted in 2016, among other things, welcomes the reports of the mandate-holder and of the Working Group on Ageing at the GA level; acknowledges the efforts made to strengthen the rights of older persons, including the possible elaboration of a legal instrument on the issue; recognizes the importance of older persons in the 2030 Agenda; notes the adoption of two new instruments at regional levels: the Inter-American Convention on the Protection of the Human Rights of Older Persons and the Protocol to the African Charter on Human and Peoples’ Rights on the rights of older persons in Africa; and predicts that by 2030, the number of older persons is expected to increase by 56 per cent.^[249]

In its operative part, the resolution recognizes the problems in the enjoyment of human rights by older persons; emphasizes the need for a comprehensive approach to care; recalls the need to fight against the violence that affects older persons; highlights the importance of poverty and lack of income security as major problems; and highlights the importance of consultation with older persons in relation to measures related to their concerns and needs.^[250]

In practice, the scope of the work at that stage of the Independent Expert was strengthened. The mandate-holder now has the capacity to send communications to States on issues of importance to older persons and is also able to provide technical assistance, capacity building and advice to States which so require. The mandate still retains flexible wording, which allows the expert to focus on the best ways and means to promote and protect the rights of older persons. The mandate was renewed once again in 2019, although its scope this time did not expressly refer to communications or capacity building in its operative part.^[251]

III.5.7.5 Recent thematic reports of the Independent Expert

After the renewal of the mandate, the Independent Expert issued additional reports. The first report focuses on the impact of automation on the human rights of older persons.^[252] In the report, the expert affirms that, undoubtedly, robots and artificial intelligence will bring about a profound transformation in daily life, including in older persons’ lives. In the case of this particular group, assistive and robotics technology is and will be used to assist older persons.^[253]

The mandate-holder examines the existing legal framework on the issue and affirms that there is a reference in the Convention on Persons with Disabilities, but no explicit reference at the regional level. In this context, she concludes that much more can be done with regards to legislating on assistive technology. Nevertheless, the Independent Expert cautions about the proper limits of automation, taking into consideration the autonomy of older persons and also the possibility of isolating them with these new methods of assistance. Assistive technology and robotics will have an impact on the right to privacy and informational self-determination (the right of an individual to decide what information about his or her personal life is disclosed). Even though technology can enhance privacy (intimate activities such as bathing or dressing), it has the potential to harm users, by misusing the information collected. The Independent Expert also recognizes implications for other rights, such as the right to have equal access to these new products; the right to liberty and security; the right to health; the right to be protected from violence and abuse; and the right to integrity.^[254]

The report concludes, among other things, that assistive technology has a positive impact and provides a better life for older persons, but it cannot replace interactions with humans. At the same time, it warns of the need for responsible use and also the need to guarantee that advanced technology does not affect the promotion of low-technology assistive products available to everyone. It also stresses the importance of universal access; a human rights-based approach in the design; the need to have informed consent from the user about the risks that technology poses; the advisability of including older persons in the design and development of assistive technology; and the need to create appropriate mechanisms of accountability.^[255]

The second report of the mandate-holder after the extension of her mandate is related to social exclusion.^[256]According to the expert, this is a complex process because it involves the denial or lack of resources or services as people age, and the inability to participate in specific activities. In the case of older persons, this situation is less likely to change than the social exclusion of younger adults. Many consequences come with social exclusion such as living alone or being very old. The Independent Expert also affirms that one of the barriers to ensuring social inclusion is the deeply-rooted discrimination against older persons. Ageism is socially accepted and it is necessary to combat it, in line with the campaign launched by the World Health Organization in 2016.^[257] In this context, the expert concludes, among other things, that it is necessary to adopt a human rights-based approach to ageing and emphasizes the importance of developing a comprehensive legal instrument to protect the rights of older persons in order to address many of the challenges faced.^[258]

The Independent Expert also submitted reports during 2019 and 2020 on issues such as the human rights of older persons in emergency situations,^[259] on the current data gap of older persons,^[260] and on the impact of the coronavirus disease (Covid 19) on the enjoyment of human rights by older persons.^[261]

III.5.7.6 Assessment of the work of Argentina and Brazil on the mandate on older persons

The initiative of Argentina and Brazil towards the establishment of a mandate on older persons has proved to be a very valuable tool for advancing a pressing human rights issue. Older persons suffer from ageism, a socially accepted and widespread form of discrimination, and also face challenges in the enjoyment of their human rights, in particular the right to health, care, work, and social protection.

The work of the two biggest South American countries is coordinated with the work of the Working Group on Ageing functioning at the GA level, and is compatible with the world conferences held in Vienna and Madrid on Ageing in 1982 and 2002 respectively.

At the same time, it reflects the work that has been done at the regional level, in the Inter-American system, where Argentina and Brazil strongly supported the relatively recent adoption of a legal instrument of a binding nature entitled Inter-American Convention on Protecting the Rights of Older Persons. Argentina has already ratified the instrument, which entered into force in 2017.^[262]

As mentioned above, OHCHR and the Independent Expert have highlighted the importance of having a comprehensive framework to enhance the protection of older persons. It remains to be seen in the near future if the Argentine-Brazilian initiative moves towards a new human rights treaty in the Council that can contribute to the enhancement of the rights of older persons in international human rights law.

III.5.8 The rights of LGBTI persons

III.5.8.1 A long path towards recognition at the United Nations

Although deeply-rooted discrimination, violence, killings, and institutional criminalization against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons are not a new phenomenon, concerns about these human rights violations only started to be raised by United Nations human rights treaty bodies and special procedures in the early 1990s.^[263]

At the turn of the new millennium, the issue was also gradually raised at the intergovernmental level. A first step was taken at the UN within specific resolutions related to summary, extrajudicial and arbitrary executions. At least since 2002, these resolutions adopted by the General Assembly have included a paragraph that expressly urged States to investigate killings of persons on the basis of their sexual orientation and prosecute those responsible for committing such crimes.^[264]

In 2003, Brazil unsuccessfully tried to introduce the issue in the agenda of the former Commission. It pushed for a draft resolution which promoted non-discrimination against any person on the basis of his or her sexual orientation, taking into consideration the human rights contained in the Universal Declaration. The text was not adopted because of the strong opposition of a significant number of States.

The failure to even include the issue in the agenda left the impression at the UN level that it would be very difficult, if not impossible, to push for a specific intergovernmental initiative on the right of any person not to be discriminated against on the basis of his or her sexual orientation or gender identity.

Nor was it possible to include the protection of persons on the basis of their sexual orientation and gender identity within the discussions on the fight against racism, racial discrimination, xenophobia and related intolerance. At the UN, the main conference against discrimination, namely, the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance of 2001, did not include any reference to sexual orientation or gender identity because there was no consensus. The same happened during the Durban Review Conference in 2009.^[265] The issue was not included either in the Ad Hoc Committee on Complementary Standards, which is mandated to discuss possible gaps to the International Convention against Racism.^[266]

From the 2000s on, the recognition of the rights of LGBTI individuals started to improve substantially in some regions of the world. A growing number of countries recognized the right of LGBTI individuals to get married, including Argentina. In 2010, the South American country was the tenth country in the world and the first in Latin America to enact legislation recognizing the right of same sex persons to marry and adopt children.^[267]

Nevertheless, even today, around 70 countries criminalize same sex relations.^[268] These laws come from former British and French colonial systems of justice or from particular interpretations of Sharia or Islamic law.^[269] In any case, fortunately, the rights of LGBTI individuals have evolved greatly in the last few years at the international and regional levels from a human rights perspective.

Gradually, in parallel to the creation of the Council in 2006, there was a growing interest in dealing with LGBTI rights at the international level. Many countries, including Argentina, Brazil, the United States and the EU started a process of consultations with different stakeholders and made statements at the plenary of the Council. The most important one was delivered in March 2011 by Colombia, on behalf of more than 80 States.^[270]

III.5.8.2. The first Human Rights Council resolution on LGBTI individuals. The role of South Africa and OHCHR

In June 2011, South Africa (a very significant country because of its tragic past of racial discrimination, its progressive National Constitution, and the region to which it belongs) decided to join the group of States that promoted the human rights of LGBTI persons.

This African country, together with Brazil, led the submission of a draft resolution at the Council on LGBTI persons focusing on the need to end violence and discrimination against them. The resolution had the support and sponsorship of the group of friends of the issue, including Argentina, but was strongly rejected by a group of countries, notably from Africa and Asia. It was, nonetheless, adopted by vote and represented a landmark in the recognition of the LGBTI community at the international level.^[271]

The preambular part of the resolution, among other things, recalls the principle of non- discrimination recognized in the Universal Declaration and expresses concern about acts of discrimination and violence against LGBTI persons.^[272]

The operative part of the resolution requests OHCHR to prepare a study on discriminatory laws and practices and acts of violence against LGBTI individuals. It also decides to convene a panel in a successive session of the Council on the issue.^[273]

The response of the then High Commissioner, Navi Pillay, was fast and robust. Her Office issued the requested report in November 2011.^[274] The document is comprehensive and starts by emphasizing that in all regions of the world there are people who suffer from violence and discrimination on the basis of their sexual orientation or identity. It also affirms that UN treaty bodies and special procedures have been documenting violations for almost two decades and those violations include, but are not limited to, killings, rape, torture, and arbitrary detention. Moreover, the report recalls that, in 2010, the then SG Ban Ki Moon emphasized the importance of not discriminating on the basis of sexual orientation or gender identity and asked States to repeal laws criminalizing homosexuality.^[275]

In this context, the High Commissioner reiterates that States are obliged to respect and protect the human rights of all persons irrespective of their sexual orientation.^[276] The report describes the violence suffered by persons on the basis of their sexual orientation^[277] and the discriminatory laws criminalizing same-sexual relations between consenting adults and other laws used to penalize them, including in some cases, with death penalty.^[278] The report also describes discriminatory practices in work spaces, health care, education, family and community, restrictions on freedom of association and assembly, denial of the recognition of rights as families, and of the recognition of gender identity.^[279]

At the national level, the report recommends investigating killings and other acts of violence and establishing a system to report those crimes; adopting measures to prevent torture and other degrading treatment against LGBTI individuals and prosecute those responsible for those crimes; ensuring the non-return of a person claiming asylum to a country where his or her life is in danger; repealing laws which criminalize same-sex conduct and harmonizing the age of consent between heterosexual and homosexual activities; enacting anti-discrimination legislation; conducting training programs for security officers and supporting public information campaigns; among other measures.^[280]

Following the issuance of her report in July 2013, the High Commissioner also launched a global campaign in favor of LGBTI rights at the international level. At the time, a press conference was held in South Africa with the High Commissioner, Archbishop Desmond Tutu, and South African Judge Edwin Cameron. The campaign had a great impact, and a series of activities were organized in different regions of the world.^[281]

III.5.8.3 A South American initiative: the second resolution on the rights of LGBTI individuals and a new OHCHR report

In 2014, South Africa decided to disengage from the initiative as main sponsor. The new draft resolution was submitted by Brazil, Chile, Colombia and Uruguay. Argentina also co-sponsored the resolution. The text was adopted by vote and represented a step forward in consolidating the protection of LGBTI individuals at the UN level.^[282] The adoption of the resolution was not easy. Many Arab countries presented several amendments to it, but many of these proposals did not pass and hence they did not affect the content of the resolution.

The operative part of the resolution takes note of the report made by OHCHR on discriminatory laws and practices and on the panel held in the nineteenth session, and requests the High Commissioner to update the report and to submit it in a successive session.^[283]

As a result, OHCHR issued a second report.^[284] This document focuses on recent developments in the fight against discrimination and violence on the basis of sexual orientation and gender identity and includes positive developments such as the elaboration of anti-discrimination and hate crime laws, the legal recognition of same sex relationships, the protection of intersex children, and other measures to guarantee the recognition of gender identity.^[285] Nevertheless, the report affirms that LGBTI individuals still face violence, harassment and discrimination.^[286]

In its conclusions and recommendations, the report, among other things, calls on States to repeal laws that criminalize same sex conduct and propaganda laws. It recommends that they enact legislation to ensure equality for LGBTI persons; investigate hate crimes; ban forced conversion treatments; provide recognition for same sex couples and their children; make sure that transgender persons have legal identity without the need to undergo abusive treatments; and guarantee refugee status to persons who have escaped from countries where their sexual orientation or gender identity is criminalized.^[287] It is important to mention that the report notes that, since 2011, three countries had decriminalized same sex relationships; fourteen countries had reinforced their laws on hate crimes or discrimination on the basis of sexual orientation; twelve countries had introduced marriages or civil unions for same sex couples; and ten had changed gender recognition laws.^[288]

III.5.8.4 A Latin American initiative: the establishment of an Independent Expert on protection against violence and discrimination on sexual orientation and gender identity

In June 2016, Argentina, Costa Rica and Mexico joined Brazil, Chile, Colombia, and Uruguay as the main promoters of the third initiative of the Human Rights Council regarding LGBTI individuals. The proposal needed strong political support because it was difficult to achieve. Fortunately, it ended in the adoption of a new groundbreaking resolution of the Council adopted by vote: the appointment, for the first time in history, of an Independent Expert on protection against violence and discrimination based on sexual orientation or gender identity.^[289]

Negotiations were tough and the debate before the adoption was extensive. There were numerous proposals for amendments, but the process ended with relatively positive results.

In the process, South Africa, a former supporter of the initiative, abstained because it argued that the proposal by the main sponsors was divisive and confrontational.^[290]

The preambular part of the resolution, among other things recognizes the sovereign right of a State to elaborate its own legislation but also the need to respect international human rights recognized at the universal level.^[291]

The operative part of the resolution emphasizes the equality of all individuals, condemns acts of violence against LGBTI individuals and establishes the mandate of the Independent Expert, which includes activities such as: assessing the implementation of international human rights instruments to fight against discrimination and violence against LGBTI individuals and at the same time identify best practices and gaps; raising awareness and identifying the root causes of violence and discrimination; providing advisory services, assistance and cooperation to States, among others. The resolution also requests the mandate-holder to submit reports to the Council and the GA; asks States, OHCHR and other stakeholders to cooperate with the mandate-holder; calls on States to accept country visits and decides to keep the issue under the Council’s agenda.^[292]

III.5.8.5 Thematic reports of the Independent Expert

Vivit Muntarbhorn was the first mandate-holder appointed for an important and difficult task. After a year of intense work, he left his position and was replaced by Victor Madrigal-Borloz. As the mandate allows the expert to have country missions, a significant number of visits were undertaken, including one to Argentina.^[293] Both mandate-holders exercised their mandate to transmit to the States concerned letters of allegations and urgent appeals.^[294]

I am going to focus on the relevant aspects of some thematic reports of the Independent Expert to explore how the issue was developed at the universal human rights level. Up to now, there have been eight reports. The first report was published in April 2017 and describes the elements of the mandate.^[295] It also gives an overview of the issue, referring to a statement by a dozen UN entities working to end violence against LGBTI persons and recalling that around seventy countries still criminalize same sex relationships. Moreover, it offers a number of reflections emphasizing that the situation of LGBTI persons varies in each country.^[296]

The report also affirms the need to implement existing instruments and to identify good practices and gaps and describes some of them.^[297] It also indicates that the principle of non-discrimination contained in many human rights treaties applies to LGBTI persons.^[298] In addition, it refers to developments in different regions (e.g. the appointment of the Special Rapporteur on the rights of LGBTI persons in the Inter-American system, and Resolution 275 of the African Commission urging States to end violence committed against LGBTI persons by State or non-State actors).^[299]

Moreover, the report addresses the root causes of violence and discrimination and indicates that it is necessary to work on a series of underpinnings, including: decriminalization of consensual same sex relationships; effective anti-discrimination measures; legal recognition of gender identity; de-stigmatization; inclusion; and education.^[300]

It concludes, among other things, that everyone has some form of sexual orientation and regrets that some groups are affected by violence and discrimination because they have a sexual orientation different from the majority. As steps forward, the expert mentions that he would follow the issue on the basis of the six underpinnings mentioned above. He makes a number of recommendations, including the following: he encourages States to ratify existing instruments; urges States to follow up on the recommendations made by special procedures, treaty bodies, and in the UPR; and encourages more checks and balances between the Executive, Legislative and Judicial branches.^[301]

The second report was issued in July 2017 for the consideration of the GA.^[302] On this occasion, the mandate-holder describes the intersectionality between sexual orientation and gender identity, and other issues such as poverty, racism, or disability, which fuel violence and discrimination. Moreover, the expert focuses on the process of decriminalization. According to his findings, 25 countries have decriminalized same sex relationships in the last 20 years.^[303]

The mandate-holder also describes positive developments on anti-discrimination measures in different countries and affirms that much remains to be done with regard to gender identity protection.^[304] The conclusion of the second report emphasizes two of the underpinnings identified by the expert: decriminalization and anti-discrimination measures. Regarding the first underpinning, the expert indicates that checks and balances between the branches of the State and the role of civil society can help to change legislation.^[305] Regarding the second underpinning, he highlights that it is important to adopt laws but also to focus on implementation.^[306] The report recommends that States ratify and implement human rights treaties incorporating respect for sexual orientation and gender identity; cooperate with national human rights institutions; protect human rights defenders; and reform laws against LGBTI individuals; among other actions.

The third report was issued in May 2018.^[307] It focuses on hate crimes and hate speech as well as on violence and discrimination based on sexual orientation and gender identity.^[308] It also addresses the root causes of discrimination: what constitutes masculine or feminine and what is labelled as normal. These root causes include three elements: the first is legislation in several countries which criminalize consensual same-sex conduct and the impact of these measures on other issues such as HIV prevention. The second is stigma: social discrimination in essential services such as health, education and employment. This stigma corrodes the social fabric and affects LGBTI persons profoundly. The third is negation and the resulting gap: it is believed that these persons do not exist in a particular context and therefore violence and discrimination will not be collected as information needed to adopt measures to fight these abuses.^[309] In this context, the report focuses on support for effective State measures at different levels, including law reform and access to justice.^[310]

This third report recommends adopting laws and other measures by States in accordance with their specific context; repealing laws criminalizing consensual same-sex relationships; avoiding the death penalty as a punishment for consensual same-sex relationships; taking measures to prevent and punish acts of violence, and to develop data collection procedures; establishing specialized prosecutorial units in charge of cases of hate crimes; enacting laws recognizing the rights of trans people; and prohibiting conversion therapies, among other measures.^[311]

The fourth report was issued in July 2018.^[312] It focuses on gender recognition as a component of identity. It begins by mentioning that the concept of gender identity varies among countries, but indicates that well established UN and regional documents use the term “trans” to refer to persons who identify as a gender different from the one assigned at birth. This report focuses on one of the underpinnings mentioned in a previous one: depathologization.^[313]

In this way, the report describes how until very recently, the tenth revision of the International Classification of Diseases maintained by the World Health Organization (WHO) included trans categories in the chapter on mental disorders. In 2018, the WHO released the eleventh revision of the Classification to be considered during 2019. In the new document, trans categories have been removed from mental disorders and a new category has been included in sexual health called “gender incongruence of adolescence and adulthood”. This category is designed to help with access to gender-affirming treatment. The expert welcomes these changes that will help to depathologize trans persons, but indicates that the inclusion of a diagnosis of “gender identity disorder of childhood” has aroused controversy, taking into consideration the increasing autonomy that exists in relation to the rights of the child. This is why the mandate-holder decides to follow the matter in the future.^[314]

The fourth report also indicates that the legal basis for State recognition is well established in international human rights treaties, taking into consideration the principle of non-discrimination. Self-determined gender is an essential choice of every human being that is related to his or her identity. Nevertheless, the expert acknowledges that UN human rights mechanisms continue to receive reports of transphobic violence and discrimination. It is still necessary to work on de jure or de facto discrimination on the basis of gender identity. ^[315]

It also addresses measures taken to respect gender identity at different levels: international (a 2016 joint call by UN human rights mechanisms, the OAS, the African Commission and the Council of Europe to reform medical classifications); regional (e.g. measures taken by the Council of Europe); and national (e.g. work on the depathologization of gender identity by pioneering States such as Argentina, Malta and Denmark)^[316] It also recalls that, at least until 2018, only ten States have passed laws adopting a model for gender identity recognition based on self-identification—including Argentina, which was the first in the world to do so in 2010. In many other cases in different regions of the world (e.g. Asia and Africa), the right has been recognized through the Justice system.^[317]

The fourth report highlights among other things, the need for States to address violence and discrimination based on gender identity and to move towards the implementation of the eleventh revision of the International Classification of Diseases as described above, with careful attention to the analysis of gender incongruence of childhood; and to adopt legislative measures to ensure equality and punish transphobia and hate crimes.^[318]

In 2019 and 2020, the Independent Expert continued his work and issued four additional thematic reports on the following issues: social, cultural and economic inclusion; data collection; the impact of Covid 19; and conversion therapies.^[319]

III.5.8.6 Assessment of the work of Argentina and other Latin American countries on the initiative on the rights of LGBTI persons

In the last decade, the recognition of LGBTI persons at the international level has moved forward more than ever before. The Council has contributed greatly to this cultural change since 2011 with a number of resolutions that ended in the appointment of an Independent Expert. This contribution has been significantly enhanced by the firm commitment on the part of the former Secretary-General Ban Ki Moon and all High Commissioners from 2011 to date.

Argentina has also made progress on the recognition of LGBTI individuals at the national level. There was extensive debate before the Equal Marriage Act was adopted in 2010, but today legal and cultural recognition has been acquired by LGBTI persons in the South American country. It comes as no surprise that this reflects its position internationally and that this decision has been maintained during different Government Administrations.

The nation was part of the group of countries that pushed for the initiative from the very beginning. In this sense, a large group of Latin American countries, including Argentina, took the lead and pushed for the creation of a mandate. Argentina is also part of the core groups which promote LGBTI rights at the GA level and Inter-American System. As a result, Argentina has contributed to further developing the application of well-established principles of international human rights law, such as non-discrimination, to LGBTI individuals.

This has represented an enormous step forward. Nonetheless, much remains to be done, as the issue remains divisive; many countries still criminalize consensual same-sex adult relationships and they are not ready to change their position on cultural, religious and social grounds. Moreover, in all regions of the world, even in countries where positive legislative, administrative and other measures have been taken, there are still cases of discrimination and violence against LGBTI persons. It is highly probable that a group of States, including Argentina, will continue to support initiatives relating to the rights of LGBTI persons and to contribute to the development of international standards in this regard.

III.5.9 Other initiatives led or sponsored by Argentina in the Human Rights Council in the last few years

During the lifespan of the Council, Argentina has also joined initiatives promoted by the Common Market of the Southern Cone (MERCOSUR) as main sponsor on different issues, including democracy and racism.^[320] Moreover, in the last few years, Argentina has joined different groups of States to promote new issues in the Human Rights Council. Indeed, the South American country joined a core group initiative in the Council to promote the prevention and elimination of child, early and forced marriages. This initiative has been led by the Netherlands and Sierra Leone and, as consequence, a series of resolutions have been adopted to strengthen efforts to prevent and eliminate this phenomenon, as well as to study its challenges, achievements, best practices and implementation gaps.^[321] The Council has organized, inter alia, a panel and has requested reports from OHCHR. One of the initiatives focused on these types of marriages in humanitarian settings. OHCHR elaborated a series of reports on the issue and also launched a specific webpage.^[322]

Furthermore, since 2017, Argentina has also joined the core group that advanced the issue related to the negative impact of corruption on the enjoyment of human rights through various resolutions adopted by the Council from 2012 to the present. This core group has been led from the beginning by Morocco, and it has grown over the years. It is composed of Morocco, Argentina, Austria, Brazil, Ethiopia, Indonesia and the United Kingdom.^[323]

So far, among other things, the Council has recognized by consensus the importance of the link between corruption and the enjoyment of human rights; has encouraged States that have not yet done so to ratify the UN Convention against Corruption; and has requested the Advisory Committee to prepare a report in that respect.^[324]

Argentina also decided to join a group of countries from different regions which have promoted the protection of cultural rights and of cultural heritage since 2016.^[325]

Moreover, Argentina has supported a series of initiatives relating to the abolishment of the death penalty. It forms part of the task force that has submitted the resolution to the GA annually since 2008. The South American country is also part of the International Commission against the death penalty. In the last few years, it joined the EU and Mongolia in a global alliance to end trade in products used for the death penalty, torture and other cruel, inhuman or degrading treatment. The EU has announced its intention to promote an international convention in this regard in the near future.^[326]

Finally, during 2018 and 2019, for the first time since the establishment of the Council, Argentina was a main sponsor of two initiatives regarding country situations together with a group of countries from its own region. In September 2018, Argentina—at the time an Observer State of the Council—joined Canada, Chile, Colombia, Costa Rica, Guatemala, Guyana, Honduras, Mexico, Paraguay and Peru in submitting an initiative on the promotion and protection of human rights in Venezuela, which was adopted by vote. The resolution welcomes a report made by OHCHR in the framework of its mandate; expresses concern about the human rights situation in that country; requests Venezuela to accept humanitarian assistance and to cooperate with OHCHR; and requests the High Commissioner to prepare a comprehensive report.^[327] Once again, Argentina joined as main sponsor in 2019 on the same initiative which, inter alia, welcomed OHCHR report 41/18 and established an independent international fact-finding mission for a one year period to investigate a series of human rights violations.^[328] In the same session, there was another initiative on Venezuela, whereby, among other things, it welcomed OHCHR report 41/18 and the presence of OHCHR in the country, requested an oral update and a report of OHCHR in successive sessions, but it did not include a specific mechanism such as the fact-finding mission. Argentina voted against this last initiative.^[329]

The second country situation co-led by Argentina was the one related to the human rights situation in Nicaragua during the March session of 2019. In this case, the main group of co-sponsors of the initiative were Argentina, Brazil, Canada, Chile, Colombia, Costa Rica, Ecuador, Paraguay and Peru. A resolution was adopted by the Council by vote and, among other things, Nicaragua was urged to resume its cooperation with OHCHR and to respect human rights in its jurisdiction, in particular the rights to freedom of peaceful assembly, association or expression, as well as guaranteeing the right to justice and reparation for the victims of human rights violations and abuses.^[330]

After a change of Administration in Argentina following the December 2019 Presidential elections, the South American country continued to support those initiatives, maintaining its vote in favor but did not join as a main sponsor. This was the case with the 2020 resolutions on the situations of Nicaragua and Venezuela.^[331] In the Venezuela case, there were again two resolutions: one which, inter alia, decided the renewal of the mandate of the fact-finding commission for two additional years—supported by Argentina, in line with its position in previous initiatives—and another one, which Argentina did not support in 2019, which among other issues, welcomed the presence of OHCHR in the country concerned and asked OHCHR to present an oral update and report to the Council in future sessions. In this case, Argentina changed its position from a vote against to an abstention.^[332]

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