(3) UNITED NATIONS PROTECTION OF HUMAN RIGHTS DEFENDERS AND SUPPORT FOR THEIR WORK
❖ Implementation of international human rights standards within countries depends to a great extent on the contribution of individuals and groups (working inside as well as outside the State), and support to these human rights defenders is fundamental to achieving universal respect for human rights;
❖ Where Governments, national legislation, the police, the judiciary and the State as a whole do not provide adequate protection against human rights violations in a country, human rights defenders become the last line of defence;
❖ Human rights defenders are often the target of human rights violations precisely because of their human rights work and they themselves require protection.
Recognition of the vital role of human rights defenders and the violations that many of them face convinced the United Nations that special efforts were needed to protect both defenders and their activities.
The first major step was formally to define the “defence” of human rights as a right in itself and to recognize persons who undertake human rights work as “human rights defenders”. On 9 December 1998, by its resolution 53/144, the General Assembly of the United Nations adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (commonly known as the “Declaration on human rights defenders”). The second step was taken in April 2000, when the United Nations Commission on Human Rights asked the Secretary-General to appoint a special representative on human rights defenders to monitor and support the implementation of the Declaration.
A. The Declaration on human rights defenders
Elaboration of the Declaration on human rights defenders began in 1984 and ended with the adoption of the text by the General Assembly in 1998, on the occasion of the fiftieth anniversary of the Universal Declaration of Human Rights. A collective effort by a number of human rights non-governmental organizations and some State delegations helped to ensure that the final result was a strong, very useful and pragmatic text. Perhaps most importantly, the Declaration is addressed not just to States and to human rights defenders, but to everyone. It tells us that we all have a role to fulfil as human rights defenders and emphasizes that there is a global human rights movement that involves us all.
1. Legal character
The Declaration is not, in itself, a legally binding instrument. However, it contains a series of principles and rights that are based on human rights standards enshrined in other international instruments that are legally binding—such as the International Covenant on Civil and Political Rights. Moreover, the Declaration was adopted by consensus by the General Assembly and therefore represents a very strong commitment by States to its implementation. States are increasingly considering adopting the Declaration as binding national legislation.
2. The Declaration’s provisions
The Declaration provides for the support and protection of human rights defenders in the context of their work. It does not create new rights but instead articulates existing rights in a way that makes it easier to apply them to the practical role and situation of human rights defenders. It gives attention, for example, to access to funding by organizations of human rights defenders and to the gathering and exchange of information on human rights standards and their violation. The Declaration outlines some specific duties of States and the responsibilities of everyone with regard to defending human rights, in addition to explaining its relationship with national law. Most of the Declaration’s provisions are summarized in the following paragraphs. It is important to reiterate that human rights defenders have an obligation under the Declaration to conduct peaceful activities.
(a) Rights and protections accorded to human rights defenders
Articles 1, 5, 6, 7, 8, 9, 11, 12 and 13 of the Declaration provide specific protections to human rights defenders, including the rights:
❖ To seek the protection and realization of human rights at the national and international levels;
❖ To conduct human rights work individually and in association with others;
❖ To form associations and non-governmental organizations;
❖ To meet or assemble peacefully;
❖ To seek, obtain, receive and hold information relating to human rights;
❖ To develop and discuss new human rights ideas and principles and to advocate their acceptance;
❖To submit to governmental bodies and agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may impede the realization of human rights;
❖ To make complaints about official policies and acts relating to human rights and to have such complaints reviewed;
❖ To offer and provide professionally qualified legal assistance or other advice and assistance in defence of human rights;
❖ To attend public hearings, proceedings and trials in order to assess their compliance with national law and international human rights obligations;
❖To unhindered access to and communication with non-governmental and intergovernmental organizations;
❖ To benefit from an effective remedy;
❖ To the lawful exercise of the occupation or profession of human rights defender;
❖ To effective protection under national law in reacting against or opposing, through peaceful means, acts or omissions attributable to the State that result in violations of human rights;
❖ To solicit, receive and utilize resources for the purpose of protecting human rights (including the receipt of funds from abroad).
(b) The duties of States
States have a responsibility to implement and respect all the provisions of the Declaration. However, articles 2, 9, 12, 14 and 15 make particular reference to the role of States and indicate that each State has a responsibility and duty:
❖ To protect, promote and implement all human rights;
❖ To ensure that all persons under its jurisdiction are able to enjoy all social, economic, political and other rights and freedoms in practice;
❖ To adopt such legislative, administrative and other steps as may be necessary to ensure effective implementation of rights and freedoms;
❖ To provide an effective remedy for persons who claim to have been victims of a human rights violation;
❖ To conduct prompt and impartial investigations of alleged violations of human rights;
❖ To take all necessary measures to ensure the protection of everyone against any violence, threats, retaliation, adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the Declaration;
❖ To promote public understanding of civil, political, economic, social and cultural rights;
❖ To ensure and support the creation and development of independent national institutions for the promotion and protection of human rights, such as ombudsmen or human rights commissions;
❖ To promote and facilitate the teaching of human rights at all levels of formal education and professional training.
(c) The responsibilities of everyone
The Declaration emphasizes that everyone has duties towards and within the community and encourages us all to be human rights defenders.
Articles 10, 11 and 18 outline responsibilities for everyone to promote human rights, to safeguard democracy and its institutions and not to violate the human rights of others. Article 11 makes a special reference to the responsibilities of persons exercising professions that can affect the human rights of others, and is especially relevant for police officers, lawyers, judges, etc.
(d) The role of national law
Articles 3 and 4 outline the relationship of the Declaration to national and international law with a view to assuring the application of the highest possible legal standards of human rights.
B. The Special Representative of the Secretary- General on human rights defenders
In its resolution 2000/61 of 26 April 2000, the Commission on Human Rights requested the Secretary-General to appoint a special representative on human rights defenders. The Commission’s intention was to provide support to the implementation of the Declaration and to gather information on the situation of human rights defenders around the world. In August 2000, Ms. Hina Jilani was appointed by the Secretary-General as the first holder of this office.
1. The formal mandate of the Special Representative
The Special Representative undertakes activities in complete independence of any State, is not a United Nations staff member and does not receive a salary. The Special Representative’s mandate, as set out in paragraph 3 of Commission on Human Rights resolution 2000/61, is to conduct the following main activities:
(a) To seek, receive, examine and respond to information on the situation and the rights of anyone, acting individually or in association with others, to promote and protect human rights and fundamental freedoms;
(b) To establish cooperation and conduct dialogue with Governments and other interested actors on the promotion and effective implementation of the Declaration;
(c) To recommend effective strategies better to protect human rights defenders and follow up on these recommendations;
The Commission on Human Rights urged all Governments to cooperate with and assist the Special Representative and to provide all information requested. The Special Representative was asked to submit annual reports to the Commission and to the General Assembly.
2. The practical activities of the Special Representative
The Special Representative’s formal mandate is a very broad one, requiring the identification of strategies, priorities and activities to implement it. The “protection” of human rights defenders is the Special Representative’s overriding concern. Protection is understood to include the protection of defenders themselves and the protection of their right to defend human rights.
The Special Representative makes every effort to ensure that the same standards are applied equally to each State, in keeping with the mandate’s global character. Several broad types of activities are undertaken, although there is often some overlap between them, with some activities serving a number of different objectives.
(a) Contacts with human rights defenders
First and foremost, the Special Representative tries to be accessible to human rights defenders themselves by:
❖ Being available to receive information from defenders, including allegations of human rights violations committed against them (see “(d) Individual cases” below), and using this information in identifying concerns to be raised with States;
❖ Regularly attending national, regional and international human rights events (including the annual session of the Commission on Human Rights), which provide opportunities for contact with defenders from around the world.
(b) Contacts with States
The Special Representative maintains regular contacts with States. General contacts are conducted through forums such as the annual sessions of the Commission on Human Rights in Geneva and the General Assembly in New York, during which the Special Representative presents annual reports to States, responds to their questions and can meet with individual State delegations to discuss issues of concern, including individual cases.
More specific contacts are conducted on a bilateral basis in meetings or in writing and these are used by the Special Representative to raise specific issues of concern with individual States and to seek State support, for example, in addressing a case or in obtaining an invitation to visit.
(c) Contacts with other key actors
The Special Representative meets, during the year, with numerous other actors of relevance to the mandate and its activities, including national parliaments; regional intergovernmental organizations; and groups of States having a commitment to improving the role and situation of human rights defenders.
(d) Individual cases
The Special Representative takes up with the States concerned individual cases of human rights violations committed against human rights defenders. Information on such cases is received from a variety of sources, including State authorities, non-governmental organizations, United Nations agencies, the media and individual human rights defenders.
As information arrives, the Special Representative first seeks to determine if it falls within the mandate. Secondly, every effort is made to determine the probable validity of the allegation of human rights violation and the reliability of the source of the information. Thirdly, the Special Representative makes contact with the Government of the State where the alleged violation is said to have occurred. Contact is usually conducted through either an “urgent action” or an “allegation” letter addressed to the State’s Minister for Foreign Affairs and copied to its diplomatic mission to the United Nations in Geneva. The letter provides details of the victim, the human rights concerns and the alleged events. The primary objective of the letter is to ensure that State authorities are informed of the allegation as early as possible and that they have an opportunity to investigate it and to end or prevent any human rights violation.
❖ “Urgent action” letters are used to communicate information about a violation that is allegedly ongoing or about to occur. The intention is to ensure that the appropriate State authorities are informed as quickly as possible of the circumstances so that they can intervene to end or prevent a violation. For example, a death threat reportedly made against a human rights lawyer in response to his or her human rights work would be addressed through an urgent action letter.
❖ “Allegation” letters are used to communicate information about violations that are said to have already occurred and whose impact on the human rights defender affected can no longer be changed. This kind of letter is used, for example, in cases where information reaches the Special Representative long after the human rights abuse has already been committed and reached a conclusion. For example, where a human rights defender has been killed, the matter would be raised with the State through an allegation letter.
In both types of letter, the Special Representative asks the Government concerned to take all appropriate action to investigate and address the alleged events and to communicate the results of its investigation and actions. Allegation letters focus primarily on asking the State authorities to investigate the events and to conduct criminal prosecutions of those responsible. The letters sent to Governments are confidential and remain so until the end of the reporting year, when the Special Representative submits an annual report to the Commission on Human Rights on communications with Governments on specific cases.
The Special Representative constantly consults with United Nations special rapporteurs whose own mandates are involved in a particular case and frequently sends joint letters of concern with these mandate holders.
(e) Country visits
The Special Representative is mandated to conduct official visits to States. Some States have issued standing invitations, and in other cases the Special Representative writes to the Government requesting that an invitation be extended. These visits provide an opportunity to examine in detail the role and situation of human rights defenders in the country, to identify particular problems and to make recommendations on how these could be resolved. By the nature of the mandate, the Special Representative is required to look critically at the situation of human rights defenders in a country. Nevertheless, the process is intended to provide an independent and impartial assessment which will be of use to all actors in strengthening both the contribution of defenders to human rights and their protection.
Country visits usually take place over a period of 5 to 10 days, during which the Special Representative meets with heads of State and Government, relevant government ministers, independent human rights institutions, United Nations agencies, the media and human rights defenders themselves, among others.
Issues raised during such visits include: violations committed against human rights defenders; the strength of the “environment” within which defenders conduct their human rights work, including freedoms of association and expression, access to funding and the support to defenders provided by domestic legislation; and efforts undertaken by the authorities to protect human rights defenders from violations.
A few months after each visit, the Special Representative issues a report on the visit indicating, among other things, main concerns and recommendations for action. The report is then formally presented by the Special Representative at the next session of the Commission on Human Rights.
(f) Workshops and conferences
Every year, the Special Representative attends a number of events— including workshops and conferences—organized around the central theme of human rights defenders, or around broader themes relevant to defenders, such as democratization. These events may be organized by States, the United Nations, academic institutions, non-governmental organizations or other actors.
The Special Representative may identify themes that are considered to have a fundamental bearing on the role and situation of human rights defenders across the world and seek to support defenders through action specifically in those areas. Some such themes are democratization processes, the responsibilities of local authorities and the impact of security or anti-terrorist legislation on human rights defenders. One consistent strategy for supporting defenders has been the establishment and strengthening of regional protection networks for them.
The Special Representative’s annual reports to the Commission on Human Rights and to the General Assembly, required under the mandate, pro vide a record of the year’s activities, describe the primary trends and concerns identified during the year, and make recommendations for how these should be addressed. Some reports examine major themes of concern, for example the impact of security legislation on human rights defenders and their work. The reports are very useful indicators of the problems confronted by defenders in specific countries and regions, as well as of particular themes of global concern. The recommendations outlined in each report provide a basis for action by States, United Nations agencies, human rights defenders themselves, the private sector and a range of other actors. The Special Representative’s reports are available on the web site of the Office of the United Nations High Commissioner for Human Rights (www.ohchr.org).
The goal of all the above groups of activities is to contribute to the protection of human rights defenders and the implementation of the Declaration.
3. Logistical and resource arrangements—the role of OHCHR
Like United Nations special rapporteurs, the Special Representative has access to only limited resources. Strategies and activities need to be adapted accordingly.
The Special Representative receives substantive support in the implementation of the mandate from the Office of the United Nations High Commissioner for Human Rights, in particular through the relevant “desk officer(s)”. These are OHCHR staff members, based in Geneva, who are responsible for managing, under the instructions of mandate holders, day-to-day activities of the thematic mandates established by the Commission on Human Rights. For example, OHCHR desk officers regularly receive information on alleged violations committed against human rights defenders, which they analyse and communicate to the Special Representative. They support the Special Representative in drafting reports and help in the preparation and conduct of country visits. Day-to-day external contacts with the mandate—by embassies, non-governmental organizations and United Nations staff—are most frequently maintained via contact with the desk officers. The Administrative Services of OHCHR provide support in the organization and funding of travel and other activities.
A small amount of funds is provided from the United Nations budget for travel by the Special Representative to conduct about two official country visits per year, to attend the sessions of the Commission on Human Rights and the General Assembly and to participate in consultations in Geneva. Occasionally, United Nations agencies and NGOs provide additional resources to support the holding of workshops, the publication of research reports and other general activities related to the mandate.
(Source: Fact Sheet No.29, Ch. 3, the Office of the UN High Commissioner for Human Rights)
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