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Analysis of the Declaration on Human Rights Defenders The Rights of Human Rights Defenders Responsibilities of Human Rights Defenders Responsibilities of Those Who Can Affect the Enjoyment of Human Rights by Others The Role of Domestic Law in the Implementation of the Declaration on Human Rights Defenders Interpretation of the Declaration on Human Rights Defenders The Next Step: Implementation of the Declaration Appendix The Declaration on Human Rights Defenders Special Representative  Human Rights Defenders Project |
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Protecting
Human Rights Defenders The adoption by the United Nations of the Declaration on Human Rights Defenders on December 9, 2024 marks a historic achievement in the struggle toward better protection of those at risk for carrying out legitimate human rights activities. The need for more effective protection of human rights defenders has been amply proven. Too often, human rights defenders find themselves at the front line of repression and harassment by their own governments for exposing human rights abuses and failures in legal systems.
The Lawyers Committee for Human Rights applauds the adoption of the Declaration on Human Rights Defenders as an important step toward better protection of human rights defenders. The Lawyers Committee has participated in the drafting process of the Declaration since 1995 and has prepared this analytical report to foster a better understanding and implementation of the Declaration. I. Introduction The adoption of the Universal Declaration of Human Rights in 1948 marked a new era for the recognition and protection of the inherent dignity of all human beings. By reaffirming the most fundamental rights and freedoms of each individual, the Universal Declaration served as an important inspiration for subsequent human rights standards at the international, regional, and national levels. Today, all states in the world have agreed to be bound by at least one of the six major international human rights treaties. However, a major gap still remains between the letter of these treaties and the actual protection of human rights on the domestic level. Domestic implementation of human rights standards largely depends on the ability of individuals and groups to promote and protect human rights and to pressure their governments to live up to their legal obligations. By documenting and exposing human rights violations and holding governments accountable, by seeking remedies for victims and educating populations on their human rights, these individuals—commonly referred to as "human rights defenders"—play a crucial role in combating violations and improving human rights situations. Human rights defenders can be anyone working to promote and protect human rights, including lawyers, relatives of victims, teachers, trade unionists, journalists, members of peasants or women’s organizations, and other human rights activists. The international community has repeatedly acknowledged the vital role of human rights defenders in the implementation of human rights on the domestic level. International monitoring mechanisms, such as the Special Procedures of the Commission on Human Rights and the UN Treaty Bodies, often rely heavily on the findings of local and national human rights activists in their assessment of domestic human rights conditions. Both the UN Secretary General and the High Commissioner for Human Rights have repeatedly expressed their strong support and admiration of the work of human rights defenders.1 However, precisely because of their critical role in promoting human rights awareness and debate on the national and international level, many human rights defenders find their own rights flagrantly violated by repressive governments. In recent years, the number of reported attacks on human rights defenders has increased dramatically. In his 1998 report to the Commission on Human Rights, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions reported that in 1997 he sent 45 appeals (31 urgent) to governments citing threats to the lives of human rights defenders.2 Attacks on human rights defenders frequently include intimidation and harassment, arbitrary arrest and detention, disappearances, torture, and other physical violence. Those involved in such attacks often enjoy complete impunity. While these forms of physical attacks have been relatively well documented, many individuals and groups are confronted with other forms of repression, through national legislation. National laws and regulations frequently infringe upon the right to freedom of association by imposing lengthy and burdensome registration procedures or discriminatory restrictions on the right to obtain funding for human rights activities—particularly from outside the country. Other forms of restriction include denial of freedom of movement and assembly, and crippling limitations on human rights publications. Recognizing the need of human rights defenders for better protection, the UN Commission on Human Rights established a working group in 1985 with the mandate to draft a UN declaration on "the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms" (hereafter "Declaration on Human Rights Defenders" or "Declaration"). Composed of governments,3 but open to participation by non-governmental organizations (NGOs), the Working Group held annual sessions for 13 years before adopting the final text of the draft declaration. The slow process in finalizing the Declaration can be attributed to two major factors: 1) from its inception, there has been friction between those governments genuinely interested in strengthening the position of human rights defenders, and those who used this drafting exercise to further restrict and hamper their work; and 2) the need for consensus allowed a small group of participating governments to veto any real progress in the finalization of the declaration. Key contentious issues in the Working Group were; (i) the role of national law in the implementation of the Declaration; (ii) the extent to which human rights defenders have special responsibilities or duties; (iii) the right of human rights defenders to obtain resources for their work; (iv) the right to observe trials; (v) the right to act on behalf of victims; and (vi) the ability of human rights defenders to freely choose which human right issues to work on. A consensus on the text of the Declaration was required before the declaration could go to the Commission on Human Rights, the Economic and Social Council, and, finally, to the General Assembly. In reviewing the Declaration on Human Rights Defenders, our overall assessment is a very positive one. The Declaration is the first UN instrument to emphasize that everyone has the right to promote, protect, and defend human rights, on the national and international levels. The Declaration reaffirms and clarifies the existing rights of human rights defenders that are most often challenged by governments, such as the right to meet and assemble peacefully; to form, join and participate in NGOs; to hold and publish information about human rights; to complain about the policies and actions of officials and government bodies; and to enjoy unhindered access to international bodies. Furthermore, the Declaration provides that everyone who exercises his or her rights is entitled to full protection by law and in practice against any violence or retaliation. The Declaration also incorporates the right to receive and obtain funding for human rights activities, a right not articulated as such in any existing human rights standard. The progressive incorporation of this right in the Declaration responds to an important need of human rights defenders that is often denied. One of the most innovative aspects of the Declaration on Human Rights Defenders is its affirmation that everyone is entitled to enjoy the rights of human rights defenders "individually and in association with others." Thus, human rights defenders are not only free to enjoy these rights as individuals but also with others in any group, association or non-governmental organization, irrespective of legal or formal status. In this regard, the Declaration makes an important contribution to the development of the right to freedom of association, a right traditionally neglected in international law insofar as it relates to NGOs. The Declaration also outlines the specific duties of States to guarantee the rights of human rights defenders. It highlights the general obligation of States to promote, protect, and implement human rights in law and in practice, as well as their duty to take all necessary measures to protect human rights defenders from violence and arbitrary action. It reiterates that States have the obligation to carry out investigations in cases of alleged violations of human rights, including those contained in the Declaration. Finally, the Declaration underscores the responsibilities of persons, such as physicians, lawyers and law enforcement officials, who may not be seen primarily as "human rights defenders" but who often play a crucial role in safeguarding the human rights of others. However, some unfortunate compromises were necessary in the lengthy, difficult negotiations to achieve the adoption of the Declaration. The most prominent example of this is the reference to the role of national law, the inclusion of which had been opposed by NGOs and many governments. They had argued that the application of the rights in the Declaration should not be made subordinate to national law, as national laws will differ from state to state and may restrict the rights of human rights defenders. However, this provision was agreed upon with the inclusion of an important safety clause: in order to provide for the "juridical framework" of implementation of the Declaration, domestic law must be "consistent with the Charter of the United Nations and other international obligations of the State in the field of human rights and fundamental freedoms." In the Working Group, a frequently mentioned example of unacceptable domestic legislation was a law that imposed different restrictions on human rights organizations than on other not-for-profit organizations. Also, in an effort to reach a compromise on the inclusion of the right to receive funding, this provision now contains a direct reference to the applicability of domestic law. Another contentious issue—the responsibilities or duties of human rights defenders—was also incorporated in the Declaration, but in a significantly watered down version that does not impose any new obligations on human rights defenders. The consensus adoption of the Declaration by the General Assembly represents an important commitment on the part of all UN member States to implement the Declaration on the national and international level. While not a legally binding document, the Declaration reiterates and builds on existing rights under international law. Given the wide range of rights, responsibilities, and duties reiterated in the Declaration on Human Rights Defenders, its implementation should be a truly global effort of States, human rights defenders, and United Nations and regional human rights bodies. Their active involvement will help make the Declaration become a living document that effectively protects the rights of human rights defenders. II.
Analysis of the Declaration on This section analyzes the articles in the Declaration on Human Rights Defenders, highlighting the problems and challenges that human rights defenders face, as well as the history of negotiations and existing rights under international law. For the purpose of clarity, the provisions appear under six separate headings—the rights of human rights defenders, the duties of States, the responsibilities of human rights defenders, the responsibilities of others, the role of domestic law, and the interpretation of the Declaration—rather than in the original numerological order of the Declaration. A. The Rights of Human Rights Defenders—Articles 1, 5-9, 12, 13 The right of everyone to promote and protect human rights The Declaration reiterates the overall legitimacy of the defense of human rights. It provides that everyone has the right to "promote and strive for the protection and realization of human rights and fundamental freedoms." The Declaration's affirmation that this overall right may be enjoyed "individually and in association with others," is an important elaboration on the individual rights of human rights defenders. In fact, it is emphasized throughout the Declaration that human rights defenders are entitled to their rights both as individuals and as members of any group, association, or non-governmental organization. The legal or formal status of any such group is therefore irrelevant for the entitlement to these rights. In addition, the Declaration reiterates that human rights defenders are entitled to promote and protect human rights "at the national and international levels." This is an important clarification that underscores the legitimacy of all human rights work irrespective of borders. Many human rights defenders regularly face harassment by their governments when conducting their work on a regional or international level—passports are confiscated to prevent international travel or reprisals follow upon return home from a human rights meeting abroad or the release of a report outside their country. Thus, lobbying for an improvement in the human rights situation in one’s country on the regional or international level—at the UN Commission on Human Rights for example—is a legitimate activity falling within the scope and protection of the Declaration. Freedom of assembly, association and the right to communicate Human rights defenders need to be able to form and work in organizations, to hold meetings and to communicate with other organizations. These fundamental rights are protected by international standards.4 In practice however, human rights defenders frequently face severe restrictions on their freedom of assembly and association. Authorities may arbitrarily deny or cancel registration as an organization, interfere with human rights meetings, and prevent defenders from affiliating with international NGOs. The Declaration on Human Rights Defenders affirms that for the purpose of promoting and protecting human rights, everyone has the right to meet peacefully; to form, join and participate in non-governmental organizations, associations and groups; and to communicate5 with non-governmental and intergovernmental bodies, such as UN. Also, the Declaration specifically provides that everyone is entitled to these rights at the national and international levels, individually, and in association with others. The right to receive and disseminate human rights information,
Unhindered access to, and dissemination of, human rights information is of crucial importance to human rights defenders. This includes the ability to collect and maintain data on human rights violations, to publish reports on human rights laws and practices, and to obtain relevant government documents on human rights protection. However, in practice human rights publications are often confiscated or prohibited, and access to vital information hampered. The Declaration on Human Rights Defenders recognizes the importance of access to human rights related information. It reiterates that in exercising one’s right to information, everyone is entitled to "know, seek, obtain, receive and hold" information about all human rights and fundamental freedoms. This includes the right to gain access to any information on how these rights and freedoms are regulated in domestic legislative, judicial or administrative systems. According to the Declaration, everyone is also entitled to publish or make known to others "views, information and knowledge" about human rights, a right that builds on provisions in international instruments providing for freedom of opinion and expression.6 The Declaration particularly provides that "public attention" may be drawn to one’s views on the observance of human rights in law and in practice. Earlier versions of this provision in the Declaration elaborated on this by including "by such means as the encouragement of public discussion, the use of the media, peaceful demonstrations and other forms of free and peaceful expression…."7 The final text did not include this degree of specificity. The right to develop new human rights ideas Article 7, affirming the right to develop and discuss new human rights ideas, and to advocate their acceptance, was fairly uncontroversial during the negotiation of the Declaration. While important for the ongoing development of human rights, this right may be viewed as an elaboration on the right to freedom of opinion and expression, both firmly protected by international law. However, in the General Assembly’s debate on the Declaration, some states expressed their concern with this article.8 The right to participate in the government and
the conduct of public affairs, and to submit proposals and criticism As reiterated by the Declaration, states have the prime responsibility to promote, protect and implement human rights. Human rights defenders, having a direct interest in influencing this process, often issue specific recommendations to their government on how to improve the human rights situation. However, not all governments are open to receiving this kind of information or criticism and, by labeling it as "anti-government," "subversive" or "political," authorize repressive measures against the individual or organization. A more positive attitude toward the contribution of human rights defenders is crucial to building mutually beneficial partnerships. Governments that use NGO data in the preparation of state compliance reports to the UN treaty bodies or allow human rights groups to help formulate domestic and international human rights priorities are contributing to this process. The Declaration on Human Rights Defenders reaffirms that everyone has the right to effective access to participation in the government of his or her country and in the conduct of public affairs, "on a non-discriminatory basis." This reflects similar provisions in international law.9 The Declaration further elaborates on this right by specifically including the right to submit criticism and proposals to governmental bodies on how their functioning can be improved, and on what obstacles exist to the implementation of human rights. The right to be protected by the law and to have an effective
remedy, the right to complain about official acts, the right to
observe trials, and the right to unhindered access to international
bodies The right to an effective remedy in case of a human rights violation is an essential cornerstone in international human rights law.10 Remedies enable victims and relatives to end a specific violation, and to obtain justice and redress. The Declaration on Human Rights Defenders recognizes the need of human rights defenders to have an effective remedy in case of violations of their rights, including of those in the Declaration. It reiterates that everyone has the right to complain, either in person or through representation, about a particular violation and to have this complaint reviewed in a public hearing by an independent, impartial, and competent judicial or other body. The complainant is entitled to obtain from this authority a decision providing redress in case of a violation, including any compensation due, as well as the enforcement of this decision, all "without undue delay." Furthermore, individuals and groups are entitled to observe all public trials to "form an opinion on their compliance with national law and international obligations and commitments" without being arbitrarily excluded. Also, the Declaration reiterates that everyone is entitled to offer "professionally qualified legal assistance or other advice and assistance in defending human rights and fundamental freedoms." This is an important provision as it would allow anyone, individually and in association with others, to assist victims of human rights abuses in all possible ways. The Declaration specifically provides that everyone is entitled to complain about the actions of individual officials and governmental bodies to relevant authorities, through petitions or other means. These authorities are under an obligation to render a decision on the matter without undue delay. Human rights defenders need free and unhindered access to international monitoring mechanisms to report human rights abuses. However, those who avail themselves of these mechanisms often face reprisals by their governments, as evidenced by the annual reports of the UN Secretary General on cooperation with UN human rights bodies. His 1998 report11 states that "…[A]s in former years, acts of reprisals reported range from veiled threats to extrajudicial killings. Alleged victims were private individuals or members of non-governmental organizations which were or had been sources of information about human rights violations for United Nations human rights bodies. Allegations of cases where persons who had personally met with representatives of United Nations human rights bodies subsequently suffered reprisals for having done so and are most disturbing." The Working Group on Enforced and Involuntary Disappearances also reports on this chilling reality: "In some countries, the mere fact of reporting a disappearance entailed a serious risk to the life or security of the person making the report or to his or her family. In addition, individuals, relatives of missing persons and members of human rights organizations were frequently harassed and threatened with death for reporting cases of human rights violations or investigating such cases."12 The Declaration on Human Rights Defenders reiterates everyone’s right to "unhindered access to and communication with" international bodies that are mandated to receive individual communications. This would cover all regional and international human rights monitoring mechanisms and procedures. In the drafting process of this provision, some governments advocated fairly restrictive proposals that would, for example, require human rights defenders to exhaust domestic remedies before even contacting an international body. Such a requirement is clearly not in accord with any procedure established by such bodies. While individual complaint procedures in human rights treaties often require that available and effective domestic remedies are exhausted before a complaint can be declared admissible, states should not to use this rule to prevent human rights defenders from submitting complaints or communicating with such bodies. According to these treaties, it is up to the relevant treaty body to determine the admissibility of a complaint and the effectiveness of domestic remedies. Also, when reviewing state compliance reports, treaty bodies do not require that NGOs exhaust domestic remedies before submitting information, including information on violations. The right to participate in peaceful activities publicizing
human rights violations and to be protected against violence or
adverse discrimination When human rights violations take place, human rights defenders often respond by drawing public attention to the abuses. However, this public exposure makes human rights defenders a vulnerable target for repressive measures and harassment. The effective protection of human rights defenders who publicly denounce human rights violations is therefore essential. While international law generally provides for the right to hold peaceful assemblies and demonstrations, as well as for freedom of expression, the Declaration contains more specific language on the degree to which everyone is entitled to effective protection. According to the Declaration, protection needs to be guaranteed by national law, and cover all peaceful responses or opposition to "activities and acts, including those by omission, attributable to States" resulting in human rights violations. To clarify these term, the Working Group agreed on the interpretation that "[t]he words ‘activities and acts attributable to States’ shall cover the acts of State organs as well as of agents or State, including the acts of agents of State trespassing their mandates (emphasis added)."13 The Declaration also provides that everyone is entitled to similar protection when protesting violent acts of other groups or individuals. Right to receive funding and other resources Human rights defenders need adequate resources to carry out their activities. They frequently depend on donations from individuals, private foundations, corporations, and governments to conduct their work, but often face extensive government control and arbitrary restrictions. The ability of human rights defenders to receive funding has been the single most controversial right in the negotiations on the Declaration. A number of governments strongly opposed the inclusion of such a provision, particularly as it relates to allowing human rights defenders to receive funding from outside the country. In its current wording, the Declaration does allow human rights defenders to "solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms, through peaceful means" without any of the previously proposed restrictions on funding.14 As a compromise however, this provision does contain a direct reference to the provision in the Declaration on the role of domestic legislation, which will be discussed below. B. Duties of the State—Articles 2, 9.5, 12.2, 14 The Declaration on Human Rights Defenders contains a number of very explicit provisions on the duty of the State, both to promote and protect human rights generally, and to guarantee the rights of human rights defenders. The responsibility of the state to promote and protect human
rights, Under the UN Charter, member States are obligated to promote universal respect for, and observance of, human rights and fundamental freedoms without distinction as to race, sex, language, or religion.15 The Universal Declaration of Human Rights reiterates this obligation, and sets a common standard of achievement toward the effective recognition and observance of human rights. A state that is party to human rights treaties is furthermore under a legal obligation to ensure these rights to all individuals under its jurisdiction, and to provide for an effective remedy in case of a violation. The Declaration on Human Rights Defenders reiterates that States have a prime responsibility to promote, protect, and implement human rights and fundamental freedoms. To this end, States should take all necessary measures, including adopting legal guarantees, to ensure that everyone can enjoy these rights in practice, individually and in association with others. In addition to this general obligation to promote and protect human rights, States should take all necessary steps to ensure that the particular rights and freedoms of human rights defenders are effectively guaranteed. State duty to conduct investigations in case of human rights
violations States have the obligation to conduct an exhaustive and impartial investigation into allegations of human rights violations, in order to identify and bring to justice the perpetrators.16 The Declaration on Human Rights Defenders echoes this by outlining the state obligation to conduct a "prompt and impartial investigation" or inquiry whenever there is "reasonable ground"17 to believe that a violation has occurred. State duty to take all necessary measures to protect human rights
defenders against violence, discrimination and retaliation In carrying out their work, human rights defenders need to be assured of effective protection against violence, retaliation, or discrimination. The increasing need for such protection has been illustrated by the numerous attacks on human rights defenders in recent years. The Declaration reiterates the obligation of the State to protect fully human rights defenders against any attacks, violence, threats, and discrimination, and to adopt all necessary measures to ensure that individuals and groups are fully protected, by law and in practice. An example of such a measure can be found in the 1998 report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions to the Commission on Human Rights:18 "[i]n circumstances where certain State authorities or sectors of the civil society perceive political dissent, social protest or the defense of human rights as a threat to their authority, the central government authorities should take action to create a climate more favorable to the exercise of those rights and thus reduce the risk of violations on the right to life. The Special Rapporteur encourages Governments to recognize publicly the legitimacy of and contribution made by human rights defenders." State duty to promote human rights through education and training Human rights training and education are crucial to promoting a better understanding of human rights within a society. Under various human rights treaties, States parties have a duty to adopt measures to promote human rights through teaching, education, and training.19 The Declaration on Human Rights Defenders cites a similar obligation, and also mentions the State's duty to ensure the widespread dissemination of information about national and international human rights laws, as well as government reports to UN treaty bodies and the official records of treaty body sessions. Also, it encourages states to support the establishment of independent human rights institutions such as human rights commissions and ombudsmen. The Declaration also specifically requires States to promote and facilitate human rights education at all levels of schooling, and in particular in the training of lawyers, law enforcement officials, members of armed forces, and public officials.20 C. Responsibilities of human rights
defenders While human rights defenders may have general duties toward their community,21 they should not be burdened with any further restrictions or "responsibilities" in carrying out their work. The proposal to incorporate in the Declaration on Human Rights Defenders a list of duties of human rights defenders to "counter-balance" their rights was systematically rejected by NGOs and many governments participating in the Working Group. However, a small group of governments insisted on the inclusion of some additional responsibilities, which are reflected in two provisions in the Declaration. It is important to note, however, that none of the more damaging proposals were incorporated in the final text.22 Rather than imposing duties, the "important role" and "contribution" of human rights defenders is now highlighted. The first provision stresses the role of individuals, NGOs and relevant institutions in making the public more aware of human rights issues, through education, training, and research. In carrying out these activities, individuals and organizations are requested to "bear[…] in mind the various backgrounds of societies and communities, in which they carry out their activities." This addition was agreed upon in the understanding that "bearing in mind" is a mental process that does not pose any restrictions on human rights defenders. Previous proposals that did not meet the consensus of the Working Group had specifically disallowed human rights defenders to "ignore the various historical, cultural and religious backgrounds of the societies and communities where they carry out their activities."23 Another troublesome proposal related to responsibilities of human rights defenders was also significantly watered down in the course of the negotiations. The provision now incorporated in the Declaration reflects article 29.1 of the Universal Declaration of Human Rights24, and highlights the important role and responsibility of human rights defenders in "safeguarding democracy" and "contributing to the advancement of democratic societies, institutions and processes." This provision was accepted with the understanding that it does not restrict human rights defenders from responding or reacting to actions or decisions of democratic institutions, or to democratic processes as such. It was stated, for example, that if a parliament approves a general amnesty for human rights abusers, human rights defenders would still be entitled to protest this decision despite the fact that it was made democratically. It was also argued that working to promote and protect human rights, and challenging the government on effective implementation, in of itself amounts to "safeguarding and advancing democracy." D. Responsibilities of those who can
affect the enjoyment In addition to the State and individuals and groups working to promote and protect human rights, others can play a crucial role in preventing human rights abuses. The duty to refrain from participation in human rights abuses The Declaration states that everyone is under the obligation to refrain from participating in human rights violations, either by act or "failure to act where required." This provision thus covers all forms of participation in human rights violations, not just those resulting from specific acts. For example, law enforcement officials who do not intervene in arbitrary killings of civilians, either to protect those at risk or to arrest those responsible for violations, would be seen as "participating" in these violations. To further strengthen this obligation to refrain from participating in violating human rights, the Declaration provides protection to those who choose not to participate by reiterating that "no one shall be subjected to punishment or adverse action of any kind for refusing to do so." Duty to comply with professional standards to ensure the human
rights of others The Declaration reiterates the right of everyone to lawfully carry out his or her profession, and emphasizes the responsibilities attached to professions that can affect the human dignity and enjoyment of human rights by others. In particular, doctors, lawyers, judges, prosecutors, and law enforcement officials can often play a crucial role in upholding human rights. These professionals are under a general obligation to comply with national and international professional codes and ethics.25 E. The role of domestic law in the implementation
of the Another contentious issue in the negotiations leading to the final Declaration was the role of national law in the implementation of the Declaration. In the Working Group, some States held the position that the rights in the Declaration would only be guaranteed insofar as they conform with national laws and regulations. NGOs and many governments opposed the inclusion of such a provision and argued that the application of the rights in the Declaration should not be subordinated to national legislation, which will differ from state to state and may restrict the rights of human rights defenders. Instead, national legislation should be brought into conformity with the international standard. The Declaration does include a reference to the role of national law, but with an important safety clause; it states that in order to provide the "juridical framework" of implementation of the Declaration, domestic law must be "consistent with the Charter of the United Nations and other international obligations of the State in the field of human rights and fundamental freedoms". Many participants in the Working Group have argued that "international obligations" would cover all treaty based and customary law obligations of the State, as well as the human rights standards adopted within the United Nations system and by regional human rights bodies.26 A frequently mentioned example of unacceptable domestic legislation was that of a law that imposed restrictions on human rights organizations that were discriminatory compared to other not-for-profit organizations. Discrimination on grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status is prohibited under international law.27 Also, it is important to see this provision in the context of other articles in the Declaration. As domestic law is feared to have a more restrictive approach to the rights of human rights defenders, it is particularly important to apply article 3 in accordance with the provision that deals with limitations on the exercise of rights. According to this provision, any limitation on the enjoyment of rights and freedoms has to be in accordance with international obligations AND determined by the law solely for the purpose of: (a) securing due recognition and respect for the rights and freedoms of others, and (b) meeting the just requirements of morality, public order and the general welfare in a democratic society.28 Therefore, if a domestic law pertains to a limitation of a right in the Declaration, it needs to satisfy the above-mentioned criteria. F. Interpretation of the Declaration
on Human Rights Defenders The Declaration on Human Rights Defenders gives some guidance on how it should, and should not, be interpreted; First, the Declaration states that nothing should be construed to contradict the purposes and principles of the UN Charter, or to contradict or derogate from international human rights instruments such as the Universal Declaration of Human Rights, the International Covenants on Human Rights, and other human rights instruments and commitments. This provision thus provides an important safeguard against restrictive interpretations of the rights in the Declaration that derogate from international standards. In addition, the Declaration states that nothing in its text may be interpreted as a right to engage in the destruction of the rights of human rights defenders. This provides an important additional safeguard to restrictions on the rights of human rights defenders. The final provision in the Declaration states that nothing in the Declaration should be interpreted as permitting individuals, groups, institutions, and States to support individuals, groups, or organizations "contrary to the provisions of the Charter of the United Nations." Delegates at the working group session argued that as long as governmental support was given to individuals and organizations for the purpose of advancing human rights work, such support was compatible with the UN Charter.29 III. THE NEXT STEP: IMPLEMENTATION OF THE DECLARATION he Declaration on Human Rights Defenders sets a common goal toward the effective protection of human rights defenders at the national and international levels. Now is the time to implement the provisions of the Declaration fully and make it a truly a "living document" protecting human rights defenders at risk. To this end, the Lawyers Committee for Human Rights issues the following recommendations to the key actors in the implementation process: 1. States All member states of the UN have committed themselves to uphold their obligations under the declaration and effectively guarantee the rights of all human rights defenders on their territory. States should take all measures necessary to ensure the full protection of human rights defenders. In particular, national legislation incompatible with the Declaration should be reviewed and, where necessary, new laws protecting and facilitating the work of human rights defenders should be adopted. The Declaration should be made widely available to everyone, particularly those involved in human rights activities, and translated into all national languages. 2. Human Rights Defenders Individuals, groups, and organizations should use the Declaration as a protective tool and press their governments to guarantee fully all rights and freedoms of human rights defenders in law and in practice. Violations of the rights of the Declaration should be reported immediately to national and international human rights monitoring bodies. 3. Commission on Human Rights The Commission on Human Rights should establish a specific monitoring mechanism to review the implementation of the Declaration on Human Rights Defenders. Such a mechanism should be able to receive and communicate to governments allegations of attacks on the rights of human rights defenders, and be able to visit countries. Toward this end, the Commission should create a special item on its agenda on the effective implementation of the Declaration on Human Rights Defenders. All special rapporteurs and working groups should continue to report separately on abuses of human rights defenders falling within their mandates. 4. High Commissioner for Human Rights The High Commissioner for Human Rights should ensure a wide dissemination of the Declaration on Human Right Defenders within the UN system, including among human rights field offices, Treaty Bodies, Special Rapporteurs, and Working Groups. Given the urgency of better protecting human rights defenders, the High Commissioner is encouraged to establish a focal point within her Office for the protection of human rights defenders. 5. Treaty Bodies Treaty bodies should give more prominent attention to the valuable role of human rights defenders in the domestic implementation of treaty standards, and their need for better protection. Experts should more systematically inquire after the ability of human rights defenders to conduct their work in the States parties under review, preferably at the beginning of their dialogue with each State. Treaty bodies should inquire after the action of State Parties to bring national legislation that is relevant to the implementation of the Declaration into accord with their international treaty obligations. -------------------- Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms PREAMBLE The General Assembly, Reaffirming the importance of the observance of the purposes and principles of the Charter of the United Nations for the promotion and protection of all human rights and fundamental freedoms for all persons in all countries of the world, Reaffirming the importance of the Universal Declaration of Human Rights and the International Covenants on Human Rights as basic elements of international efforts to promote universal respect for and observance of human rights and fundamental freedoms and the importance of other human rights instruments adopted within the United Nations system, as well as those at the regional level, Stressing that all members of the international community shall fulfil, jointly and separately, their solemn obligation to promote and encourage respect for human rights and fundamental freedoms for all without distinction of any kind, including distinctions based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and reaffirming the particular importance of achieving international cooperation to fulfil this obligation according to the Charter of the United Nations, Acknowledging the important role of international cooperation for and the valuable work of individuals, groups and associations in contributing to the effective elimination of all violations of human rights and fundamental freedoms of peoples and individuals, including in relation to mass, flagrant or systematic violations such as those resulting from apartheid, all forms of racial discrimination, colonialism, foreign domination or occupation, aggression or threats to national sovereignty, national unity or territorial integrity, and from refusal to recognize the right of peoples to self-determination and the right of every people to exercise full sovereignty over its wealth and natural resources, Recognizing the relationship between international peace and security and the enjoyment of human rights and fundamental freedoms, and mindful that the absence of international peace and security does not excuse non-compliance, Reiterating that all human rights and fundamental freedoms are universal, indivisible and interdependent and interrelated, and should be promoted and implemented in a fair and equitable manner, without prejudice to the implementation of each of these rights and freedoms, Stressing that the primary responsibility and duty to promote and protect human rights and fundamental freedoms lie with the State, Recognizing the right and the responsibility of individuals, groups and associations to promote respect for, and foster knowledge of, human rights and fundamental freedoms at the national and international levels, Declares: Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels. 1. Each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political as well as other fields and the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all these rights and freedoms in practice. 2. Each State shall adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in this Declaration are effectively guaranteed. Domestic law consistent with the Charter of the United Nations and other international obligations of the State in the field of human rights and fundamental freedoms is the juridical framework within which human rights and fundamental freedoms should be implemented and enjoyed, and within which all activities referred to in this Declaration for the promotion, protection and effective realization of those rights and freedoms should be conducted. Nothing in the present Declaration shall be construed as impairing or contradicting the purposes and principles of the Charter of the United Nations nor as restricting or derogating from the provisions of the Universal Declaration of Human Rights, the International Covenants on Human Rights and other international instruments and commitments applicable in this field. For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:
Everyone has the right, individually and in association with others:
Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles, and to advocate their acceptance. 1. Everyone has the right, individually and in association with others, to have effective access, on a non-discriminatory basis, to participation in the government of one's country and in the conduct of public affairs. 2. This includes, inter alia, the right, individually and in association with others, 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 which may hinder or impede the promotion, protection and realization of human rights and fundamental freedoms. 1. In the exercise of human rights and fundamental freedoms, including the promotion and protection of human rights as referred to in this Declaration, everyone has the right, individually and in association with others, to benefit from an effective remedy and to be protected in the event of violation of these rights. 2. To this end, everyone whose rights or freedoms are allegedly violated, has the right, either in person or through legally authorized representation, to complain to and have that complaint promptly reviewed in a public hearing before an independent, impartial and competent judicial or other authority established by law, and to obtain from such an authority a decision, in accordance with law, providing redress, including any compensation due, where there has been a violation of that person's rights or freedoms; as well as enforcement of the eventual decision and award; all without undue delay. 3. To the same end, everyone has the right, individually and in association with others, inter alia:
4. To the same end, and in accordance with applicable international instruments and procedures, everyone has the right, individually and in association with others, to unhindered access to and communication with international bodies with general or special competence to receive and consider communications on matters of human rights and fundamental freedoms. 5. The State shall conduct a prompt and impartial investigation or ensure that an inquiry takes place whenever there is reasonable ground to believe that a violation of human rights and fundamental freedoms has occurred in any territory under its jurisdiction. No one shall participate, by act or failure to act where required, in violating human rights and fundamental freedoms, and no one shall be subjected to punishment or adverse action of any kind for refusing to do so. Everyone has the right, individually and in association with others, to the lawful exercise of his or her occupation or profession. Everyone who, as a result of his or her profession, can affect the human dignity, human rights and fundamental freedoms of others should respect those rights and freedoms and comply with relevant national and international standards of occupational and professional conduct or ethics. 1. Everyone has the right, individually and in association with others, to participate in peaceful activities against violations of human rights and fundamental freedoms. 2. The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of their legitimate exercise of the rights referred to in this Declaration. In this connection, everyone is entitled, individually and in association with others, to be effectively protected under national law in reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to States which result in violations of human rights and fundamental freedoms as well as acts of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms. Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms, through peaceful means, in accordance with article 3 of this Declaration. 1. The State has the responsibility to take legislative, judicial, administrative or other appropriate measures to promote the understanding by all persons under its jurisdiction of their civil, political, economic, social and cultural rights. 2. Such measures shall include, inter alia:
3. The State shall ensure and support, where appropriate, the creation and development of further independent national institutions for the promotion and protection of human rights and fundamental freedoms in all territory under its jurisdiction, whether they be ombudsmen, human rights commissions or any other form of national institutions. The State has the responsibility to promote and facilitate the teaching of human rights and fundamental freedoms at all levels of education, and to ensure that all those responsible for training lawyers, law enforcement officers, the personnel of the armed forces and public officials include appropriate elements of human rights teaching in their training programme. Individuals, non-governmental organizations and relevant institutions have an important role in contributing to making the public more aware of questions relating to all human rights and fundamental freedoms through activities such as education, training and research in these areas to further strengthen, inter alia, understanding, tolerance, peace and friendly relations among nations and amongst all racial and religious groups, bearing in mind the various backgrounds of societies and communities, in which they carry out their activities. In the exercise of the rights and freedoms referred to in this Declaration, everyone, acting individually and in association with others, shall be subject only to such limitations as are in accordance with applicable international obligations and are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 1. Everyone has duties towards and within the community in which alone the free and full development of his or her personality is possible. 2. Individuals, groups, institutions and non-governmental organizations have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes. 3. Likewise, they have an important role and a responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized. Nothing in the present Declaration shall be interpreted as implying for any individual, group or organ of society or any State the right to engage in any activity or to perform any act aimed at the destruction of the rights and freedoms referred to in this Declaration. Nor shall anything in the present Declaration be interpreted as permitting States to support and promote activities of individuals, groups of individuals, institutions or non-governmental organizations contrary to the provisions of the Charter of the United Nations.
Closing statement of the Lawyers Committee for Human Rights to the Working Group on Human Rights Defenders–March 4, 1998 The Lawyers Committee for Human Rights welcomes the ad referendum adoption of the draft Declaration on Human Rights Defenders as an important step toward greater recognition and protection of the work of human rights defenders around the world. The Lawyers Committee would like to make the following interpretive statement regarding the text of the draft Declaration; 1) The promotion and protection of human rights and fundamental freedoms are legitimate concerns of the international community and can therefore no longer be considered to be matters falling essentially within the jurisdiction of the state as referred to in article 2.7 of the UN Charter. 2) Recognizing that human rights are universal, indivisible, interdependent and interrelated, the international community as a whole should strive towards a fair and equitable promotion and implementation of human rights and fundamental freedoms. Human rights defenders should be free to determine the focus and scope of any human rights activity, and be subject only to the limitations referred to in article 17 of the Declaration. 3) Domestic law can provide a juridical framework for the activities in the Declaration only if the law is in full compliance with the international obligations of the state in the field of human rights and fundamental freedoms. International human rights obligations are to be interpreted as comprising all treaty-based and customary law obligations of the state, as well as human rights standards adopted within the United Nations system and by regional human rights bodies. 4) The notion of responsibilities of human rights defenders should be interpreted in the context of the important role of human rights defenders in promoting and protecting human rights and fundamental freedoms at the national and international level. By carrying out the activities referred to in the Declaration, human rights defenders will make important contributions towards safeguarding democracy and to the advancement of democratic institutions and processes. Endnotes
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