by Laifungbam Debabrata Roy, CORE
United Nations protection of human rights defenders and support for their work
United Nations action in favour of human rights defenders has developed from recognition of the following:
• 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, which was succeeded by the Human Rights Council in 2006, asked the Secretary-General to appoint a special representative on human rights defenders to monitor and support the implementation of the Declaration.
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 fulfill 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 below. 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, doctors, nurses, 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.
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. In March 2008, the Human Rights Council, with resolution 7/8 decided to continue the mandate on human rights defenders for a period of three years. The Human Rights Council appointed Mrs. Margaret Sekaggya, and she succeeds Ms Hina Jilani. Mrs. Sekaggya can be contacted by email at [email protected] for appeals and [email protected] for other purposes.
The formal mandate of the Special Representative
The Special Representative’s mandate 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.