Interview with Prof. Fernand de Varennes

Dr Miranda Melcher: Hello and welcome to Just Access. In this podcast series, we speak to some fascinating people, including legal experts, academics, and human rights advocates, and we explore ideas about the future of human rights and improving access to justice for all. I'm Dr. Miranda Melcher, a senior legal fellow at Just Access, and over the next two episodes, I get the opportunity to speak to the just finished United Nations Special Rapporteur on Minority Issues, who served from 2017 to 2023.

[00:00:35] Professor Fernand de Varennes is currently visiting professor at the Université Catholique at Lyon and at the University of Sarajevo. In this first episode, we focus on the role of Special Rapporteur and the professor's assessment of challenges. facing minorities around the world. In the second episode, we'll continue our conversation to focus on problems with current tools for protecting human rights and discuss ways to improve access to justice and especially how grassroots efforts can help motivate reforms. 

[00:01:10] Interview - Part 1

[00:01:10] Dr Miranda Melcher: To start us off, would you mind telling us a bit about your background and explaining where your interests in the rights of minorities began?

[00:01:29] Prof. de Varennes: Yes, thank you very much for that. In fact, I think it's quite clear that my own upbringing, my background, as a French speaking Canadian from New Brunswick, so the eastern part of Canada. In other words, I grew up in, a, minority environment, minority background as a member of a ethnic, religious and linguistic minority in Canada.

[00:01:49] And that actually extends not only to my youth, if you will, but also later in life, because I emigrated to Australia at one point, where I was also not only a member of an ethnic, linguistic, and religious minority, but also an immigrant. It all combined for my initial interests, but then, of course, as an academic , teaching mainly Australia, I specialized in areas of international human rights in the Asia Pacific and also in Europe. So all of that in a way prepared the background, if you will, for my eventually focusing on human rights and international law and specifically the rights of minorities.

[00:02:29] Dr Miranda Melcher: Hmm, that very much makes sense added all on top of each other. Given that background and of course the work in academia, how then does that make you a special rapporteur? How does one become a special rapporteur given that background?

[00:02:44] Prof. de Varennes: I guess the best way to describe it was that there was a significant gestation period. In the sense that even though I was focusing on human rights as an area of interest from the point of view of international law, and even though I actually was involved in quite a few initiatives in the region, the Asia Pacific and Australian regions to further understanding and application of human rights in the region, over a long period of time, over really decades.

[00:03:14] I increasingly developed various initiatives, such as, for example, I launched the very first, and I think still the only, legal journal, law journal focusing on human rights in Asia. That was started about 25 years ago and still operating in Hong Kong. I was also the first one who launched a master's program in human rights in Australia. And I initiated a number of human rights initiatives in different parts of the world. I taught human rights also in places such as Ethiopia, Japan, Indonesia. And I spent time in Northern Ireland and Northern Italy, where there are significant minority populations and Finland and so forth. So, all of that means that over decades, and I have to say, also, I should add as an academic, I published a huge number of articles, journal articles and other publications.

[00:04:06] I think at last count about 300, in some 30 languages around the world. And all of that, in a sense, meant that I had a well recognized and acknowledged expertise in human rights, but human rights in Asia, Africa, Europe and Australia. And hence, I was in a sense, without intentionally doing that over decades, my background, my global experience and reputation meant that eventually people ask me, Phil, no, why don't you actually, apply or try to become one of the special Rapporteurs, specifically special Rapporteur of the UN on minority issues.

[00:04:46] Dr Miranda Melcher: Wonderful. Yeah, again, the idea of kind of building things up as you go, leading to something. I think for some of our audience, the role of special rapporteur is probably quite familiar, but maybe not to everyone. So, how might you introduce that [00:05:00] role to someone who might be less familiar with kind of what it means, that title?

[00:05:04] Prof. de Varennes: That's a very good question. And it's actually a bit more complicated than people realize. Special rapporteurs are actually part of what are known at the United Nations as special procedures. And in the history of the United Nations, and this is actually not well known or understood, special procedures were really the first steps of the United Nations in ensuring the, recognition and implementation of international human rights obligations, because the UN, when it was initially created, actually had a relatively minor role in the area of human rights, and exceptionally , the UN General Assembly in the late 1950s decided, well, no, the United Nations should directly get involved in some minority, in some human rights issues, and therefore they decided to do a ad hoc special procedure of experts to look at the situation in Southern Africa during the white apartheid period.

[00:06:03] And that's where we come from. We are a part of the historical very first steps of the United Nations in the protection of human rights, we were exceptional, special procedures were only supposed to be temporary, but hey we're still there. To summarize all of that, we are a special procedure intended to be independent experts, focusing in specific areas of human rights protection, in my case, minorities, we have others for freedom of religion, for example, and the rights of women and other areas, such as prohibition of torture and so on.

[00:06:40] And as independent experts, we actually have 3 different hats. One of them is that, at the invitation of states, we conduct in country on site investigations of how well or not so well a government is complying with its international human rights obligation. So these are called country visits or missions  that we are asked to conduct in some countries, and we submit a report on this to the UN Human Rights Council.

[00:07:08] So it's a general assessment on the situation in the country. Secondly, we're also a complaint mechanism. If individuals or groups feel that their human rights which fall under our mandates are not being complied with, they can actually send a complaint or what we call a communication directly to us and we will look into these matters, ask a government through diplomatic channels to please explain the allegations and whether they're valid or what the government has done to address these and we can actually present the situation both to the U. N. human rights council, or sometimes the general assembly of the United Nations and indicate our views. And we can also exercise public awareness in the sense that we can raise these complaints that were made to us through social media or press release and indicate our grave concerns over this. So it's a kind of if you will high level pressure on governments, indicating that we are looking at some situations that can exercise pressure and sometimes it can lead to changes. 

[00:08:11] And thirdly, because we are independent experts, we also have the hat of trying to clarify what are these international human rights. Because just to give you a quick example, freedom of religion is a fundamental human right in international law. But what does it actually mean in specific areas?

[00:08:30] Special Rapporteurs will issue what we call thematic reports, where we try to clarify certain aspects of which fall within our mandates that may not be clear. What are the rights of linguistic minorities and what are linguistic minorities is, for example, one of these areas. So we have quite a few hats, and I think we could even add a fourth one, which is, in a sense, we try to raise awareness, public awareness on issues of human rights around the world, which fall within our mandates also.[00:09:00]

[00:09:00] Dr Miranda Melcher: So, given those three or perhaps four hats and the many different kinds of things involved in achieving them, what does the role look like on any random Tuesday?

[00:09:12] Prof. de Varennes: Extremely busy. That's because all of the hats that we have to wear, and when you consider that our mandate or the mandate of most of us is global, it really means that we can be submerged by requests, complaints actually, as to allegations of violations of human rights, requests to perhaps provide expertise to some governments or even to United Nations, some United Nations institution, or for example, to attend various conferences, meetings to explain certain areas of human rights.

[00:09:45] And so we are, I think the best way to describe it is on a daily basis, we are bombarded with all kinds of situations, demands, some of them quite tragic, frankly, because we can deal with extremely serious allegations of massive violations of human rights also. And to be perfectly frank, and perhaps even blunt, we cannot respond to everything and everyone.

[00:10:10] We have very limited resources. In fact, people are quite often shocked at the limited number of human rights officers that work with us at the United Nations in Geneva and considering the level, the volume of allegations that we get, in a way, I'm sure we kind of disappoint in the sense that we simply cannot respond to all allegations of violations of human rights. So we have to be selective given, as I said, a very limited resources to deal with the global mandate.

[00:10:42] Dr Miranda Melcher: Unfortunately, one thing that hasn't changed, as you mentioned earlier, that the role was meant to be temporary, right, when it was created, and yet here you all still are. Clearly, there's a number of issues in terms of human rights and the protection of it that remain ongoing, and with the limited resources even honestly if you had every resource in the world, there still might not be enough time to work on all these issues given the scope. In the time that you were Special Rapporteur a lot changed in the world, a lot maybe didn't or continued. How do you think the landscape has changed on the topic of minority rights over the course of your tenure?

[00:11:21] Prof. de Varennes: I would say it has not improved. And I think one has to be absolutely honest. The situation for many minorities around the world is getting worse. One of the perhaps I will not use the word failures, but one of the weaknesses of the international human rights architecture is that we do not have strong implementation mechanisms.

[00:11:43] Today we have a very large number of treaties dealing with protection of human rights and international law, but very few of them have any kind of mechanism to ensure that they're respected, they're enforced. And it's even more so in the case of minorities. We must recognize  the weakness and perhaps we should say the failures of the international human rights system in not having very strong mechanisms to try to ensure that these human rights are respected.

[00:12:13] And I think we can say that the world in the last two decades in particular, generally speaking, has become a much darker and nastier place for everyone, but particularly minorities. One of the statistics that I don't think we acknowledge sufficiently is that we actually have today more violent conflicts in the world than we've ever had since the 2nd World War.

[00:12:36] And by some measures of it, we actually have perhaps the largest number of violent conflicts in human history. As blunt as that. Now, the problem is, one of the aspects that we also sometimes don't recognize is many of these, in fact, most of these conflicts are internal inside a country, and most of these also involve minority or minority grievances or claims that the rights of minorities are not respected, religious minorities, ethnic minorities, or even the instrumentalization, you know, politicians, even governments, we use the case of the war in Ukraine, where Russia used the argument that the Russian minority in Ukraine was being mistreated as one of the reasons or excuses for its intervention in Ukraine.

[00:13:24] So, we now have a situation where the world is in the worst shape today in areas of war and violent conflicts than we've ever been, and minorities are often at the receiving end. We also have around the world today, once again, this is at a historical level, more displaced people, usually because of these conflicts, which mainly involve minorities, we have more displaced people than at any time in human history.

[00:13:52] It's over 100 million, about 110 million people right now. It's much worse than at the time of the second world war. And in addition to that, we have mind boggling situations of massive violations of rights, human rights of minorities. For example, Tibetan children, there's about 1 million Tibetan children that have been removed from their families and put into schools, I forget the name now in English, residential schools away from their families. 1 million children. They are being put in residential schools for most of their childhood away from their family. 

[00:14:31] Now, that is an astonishing number. And we, my mandate and others actually raised this issue with the Chinese government after we received a complaint, these allegations, and in fact, the Chinese government has not denied that this is happening. You also have almost 800, 000 Uyghur children, children who are of a Muslim and ethnic minority in the northwest of China, the Uyghurs. Once again, they're actually removed from their family sent to residential schools for most of their childhood and the international community is not responding to these massive violations of human rights of minorities. 

[00:15:12] Clearly, and I've written this in some of my report, clearly because there is a policy to eliminate the Tibetans and the Uyghur as a distinct people and community in China. This is actually not only happening in China, we have situation involving Muslim minorities, the Rohingya in Myanmar, 1, 000, 000 Rohingya who have been denied citizenship.

[00:15:38] We have situations where right now, there's a potential of almost 2, 000, 000 people in India being denied citizenship, mainly because they're also members of a Muslim minority, and this is spreading around the world. The world is getting to be a darker, nastier and more dangerous place. And it seems that the multilateral system with the United Nations and other international organizations is unable to respond to these.

[00:16:06] Including the Security Council, which has a lot, a number of obstacles in really dealing with these issues. To be very frank, not only during the term of my mandate of special rapporteur, but in the last two decades, the overall situation for minorities in many parts of the world has gotten much worse.

[00:16:23] And because we do not have strong systems to protect the human rights of minorities we are failing in doing anything to respond to that. And that's one of the reasons I propose that there should be a human rights treaty specifically for minorities to address some of the world's biggest challenges, which, in fact, is almost unheard of or unknown in most parts of the world.

[00:16:45] Dr Miranda Melcher: I don't want to add another challenge to the list you've just given us to ask you about. But I feel like I would be remiss not to include in the situations and circumstances you've just described, of course, the additional challenge of the climate crisis facing obviously the whole world.

[00:17:01] It's not just getting darker and nastier, but hotter as well. How is this impacting already minority rights and the work you've just told us about?

[00:17:12] Prof. de Varennes: Very good question. In two very distinct ways. One of the ways that the climate crisis is particularly impacting on minorities, and I would say minorities and indigenous peoples, is that in many parts of the world, minorities and indigenous peoples may be amongst the most vulnerable to climate change.

[00:17:30] There are situations where they may be amongst the poorest segments of society, so therefore unable to adapt because of their financial restrictions, as well as other segments of society, or as quickly as other segments of society. Secondly, there is also the situation where many communities that are minority or indigenous people may live in areas that are more susceptible to the impacts of climate change.

[00:17:55] If they live in low lying areas, for example, with the rise of oceans, which is predicted and actually has already started, the land, the traditional territories of indigenous peoples and certain minorities in different parts of the world can be actually much more vulnerable to the disasters connected to climate change.

[00:18:16] So there's these two aspects, which I think we need to keep in mind that you may have because of their vulnerability, economic and financial vulnerability that minorities and indigenous people can be more impacted. But beyond those 2 examples, there's another area I think we need to emphasize, which is almost more indirect, but still quite important.

[00:18:37] In times of crisis throughout history, by the way people often look for scapegoats. And when you have, as we do now, not only the climate crisis, we now also have an inequality crisis in around different parts of the world, the poor are actually getting poorer and the rich, especially the ultra rich are getting even much further enriched. And in that kind of context of instability, growing inequality, uncertainty or crisis around climate change, also the impact of social media and misinformation, disinformation and hate speech, what we are seeing is an explosion, what has been called in fact, a tsunami of hate, blaming various groups, but especially blaming minorities as somehow responsible or not acting properly or being disloyal, in fact.

[00:19:35] So, throughout history, and this has happened during the time of the plague in the Middle Ages in Europe, Jews were often blamed for the spreading of the plague. And believe it or not, some parts of the world are reverting to this. They are blaming certain minorities, Muslims in India, or Roma in Europe, for not being careful during the pandemic, or helping the pandemic, the COVID virus being spread.

[00:20:02] Or you might have heard this, and I cannot believe I'm going to repeat this. You even had American politicians talking about, rather directly or indirectly, Jewish space lasers contributing to the fires that had spread in California. I mean, it is, once you start looking at what is being spread around the world, what the climate crisis, with the other types of insecurities that are now extremely widespread around the world, and the effects of misinformation, disinformation, what we now have is a scapegoating, a massive explosion, tsunami as I said, of hate speech against minorities and indigenous peoples in some cases, identifying in some countries, minorities as disloyal, a threat or others that must be gotten rid of.

[00:20:56] And this is increasing around the world. In fact, we have some statistics in countries where we have clear data on hate speech, it's quite clear that the main targets of hate speech in many countries tends to be minorities. In countries such as the United Kingdom, the United States, for example, where I've seen statistics data of perhaps around 70 to 75 percent of hate speech actually targeting minorities, ethnic, racial, religious minorities.

[00:21:26] So, the climate change or the climate crisis is contributing to this unhealthy, dangerous, and hateful environment where minorities tend to be scapegoated and targeted, which also adds to the instability and fear that we have around the world right now.

[00:21:45] Dr Miranda Melcher: Thank you, Professor, so much for explaining the role of Special Rapporteur and helping us understand some recent trends in the area of minority rights.  In our next episode, we'll look at how to improve access to justice in this area, again with the Professor.

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