Introduction
Human rights defenders have been on the agenda of the United Nations (UN) for several decades. After more than 13 years of negotiations, the UN General Assembly adopted the UN Declaration on Human Rights Defenders in 1998. This was a historic achievement. It was the first UN instrument to particularly recognise the importance and legitimacy of the work of human rights defenders, as well as their need for better protection. The adoption of the Declaration on Human Rights Defenders has provided recognition of human rights defenders and increased their visibility, which also paved the way for the establishment of a UN mechanism for their protection. The UN mandate was established by the then Commission on Human Rights in 2000. The first mandate holder was a Special Representative of the Secretary General on Human Rights Defenders, and from 2008, a Special Rapporteur has been appointed by the Human Rights Council. Thanks to the work of the Special Representative and Rapporteurs, as well as of human rights defenders themselves, we now know more about their valuable work to promote and protect human rights, as well as the challenges they face. We also know more about how restrictions on freedom of expression, association and peaceful assembly affect their work. Over the last years the voices of civil society have been restricted or silenced in every region across the world. Human Rights defenders face mass surveillance, legislation aimed at restricting their activities, use of counter-terrorism legislation to curtail dissenting voices, as well as harassment of and violence against them. We have, however also seen important positive developments.
How the process started
The idea of a declaration on the right to promote and defend human rights was a Canadian initiative in 1980 at the United Nations Commission on Human Rights, the forerunner of today’s Human Rights Council. A resolution (1980/23) which appealed to all governments to “encourage and support individuals and organs of society exercising their rights and responsibilities to promote the effective observance of human rights”. The timing of this initiative should also be seen in a political context. After many years of Cold War between the West and the Communist East, both sides (or “blocs”) had become more interested in creating a more stable and predictable international system.
Important in this regard was the adoption of the Helsinki Final Act in 1975 by 35 states from both blocs at the conclusion of the Conference for Security and Cooperation in Europe (CSCE). The Helsinki Final Act, which played an important role in improving the relations between East and West, declared that human rights were a principle of international relations, and thus gave human rights a more important role in the East-West agenda. The document contained some formulations that are reflected in the 1998 Declaration. In the chapter on “Respect for human rights and fundamental freedoms…” the states: “Confirm the right of the individual to know and act upon his rights and duties in the [human rights] field.”
Despite the adoption of the Helsinki Final Act, it was not possible to establish independent NGOs in the Eastern bloc countries. In the following years, however, dissidents from the Soviet Union as well as from other countries in the Eastern bloc, succeeded in establishing contacts with Western human rights organisations and governments. Human rights violations and political repression in the Eastern bloc became more public due to these newly established contacts.
After an increase of arrests of human rights defenders and dissidents in the last part of the 1970s, the following CSCE conferences were increasingly used by Western governments as a forum to publicly criticize human rights violations in the Eastern bloc. Several dissidents and activists were mentioned by name in CSCE meetings. The Helsinki Final Act therefore became an important tool in supporting dissidents in Eastern Europe, and also paved the way for the previously mentioned Human Rights Commission’s Resolution 1980/23 and its follow-up process. A crucial element of the resolution, which was difficult to accept for countries in the Eastern bloc, was the acknowledgement that effective implementation of international standards for human rights relies on the work of activists and civil society groups both inside and outside relevant states and that such work, potentially exposed these individuals to increased risks. Inspired by Resolution 1980/23, the Sub-Commission of the Human Rights Commission presented some guiding principles in March 1984, the same year the Human Rights Commission established a working group to prepare a declaration on the subject. The Working Group existed until 1998 and was open for participation of all states. In addition, several international NGOs took active part in the negotiations, some of them in informal advisory roles for governments that worked to achieve a strong declaration. The strong involvement of NGOs should be seen in light of a development from the 1970s, where international NGOs played an increasingly important role, i.a. in the UN. Networks were developing between Western human rights NGOs and local dissidents and human rights defenders in the Eastern bloc, Latin America and South Africa. These networks became important arenas for exchanging information on human rights violations. In Western democracies, activist groups were formed that specifically advocated for persecuted individuals in the Eastern bloc, such as Andrei Sakharov and Yelena Bonner. At the UN level, the representatives of several NGOs therefore took initiatives to achieve recognition of the defence of human rights as a right in itself and to attain essential preconditions such as freedom of expression, assembly and access to information and funding.
Not surprisingly, the negotiations were influenced by the international political climate throughout the process. The tougher line towards dissidents in some of the countries in the Eastern bloc did, however, not prevent the late 1970s and the 1980s, from becoming a period of major achievements in the codification of human rights under international law. The two human rights covenants entered into force in 1976. The Convention on Elimination of Discrimination against Women was adopted in 1979. In 1984, the Convention against Torture was adopted and in 1989 the Convention on the Rights of the Child was adopted.
During the work on the draft Declaration, a number of important changes were taking place worldwide, including the collapse of the Soviet Union, the fall of the last military dictatorships in Latin America and the end of the apartheid regime in South Africa. Although these developments contributed significantly to the completion of the Declaration, there was still considerable resistance which continued until the end of the process.
Areas of conflict during the process
Differences between the East and the West were prominent during the first years of the drafting process. The primary areas of conflict during the negotiations concerned the role of the individual and of civil society at the national as well as at the international level. The states in the Eastern bloc emphasised state sovereignty and non-intervention in internal affairs. Already at the first session of the Working Group,[1] the representative of the German Democratic Republic, stated that: “The question of the individual must be seen in the context of principles such as the sovereign equality of States and non-interference in their internal affairs.” This reflected a view that did not allow for individuals to have rights and be subjects under international law. Human rights issues were, according to this view, something that should only be interpreted and carried out between states at the international level and by the state at the national level. Other states from the Eastern bloc, including Bulgaria, the Soviet Union and the Byelorussian SSR, made similar statements.
Contrary to this approach, Western governments highlighted the importance of assuring international recognition of and protection for those who seek to promote the enjoyment of human rights for themselves and for others. Australia stated that the right to promote and protect human rights must be the primary focus of the declaration and that it should cover protection of human rights activists. The USA stated that the declaration should “limit the proper role of States to the protection of universally recognised human rights and the creation of an environment in which the enjoyment of basic human rights can be fully realised”.
In 1987, Canada and Norway presented the first draft of the Declaration, which emphasised the protection and rights of human rights defenders as individuals, rather than the rights of states.
Although the conflicts between East and West dominated much of the negotiations, the opposing views were not only an ideological confrontation between the Eastern and Western blocs in the context of the Cold War. Many countries in the third world, who did not participate very actively in the negotiations, had similar concerns of those voiced by the Eastern bloc. The same was the case with China, which became increasingly active during the process.
In this regard, the French delegation reminded the Working Group at one of its last sessions that the issue under discussion was the protection of human rights defenders, not of states.
Another area of conflict was caused by the fact that mention of specific rights for human rights defenders in the draft was repeatedly met with an emphasis on their obligations. This diverging approach was also reflected in the final text of the 1998 Declaration.
At that time, several states in the Eastern bloc were supporting movements in the third world fighting against apartheid, colonialism and what they called imperialism. To balance this with their lack of tolerance for internal opposition, the Byelorussian Socialist Soviet Republic, stated in 1986 that the Declaration should not support the resistance of individuals against the state, as the latter was responsible for ensuring the respect of human rights. The delegation added, however, that “the exceptions were in cases of colonial, racist, or repressive regimes”.
As a result of the dissolution of the Soviet Union and the end of the Cold War, there was a significant change in the climate of the negotiations. The Eastern bloc had seen the process as an anti-Soviet initiative and therefore felt politically cornered by the whole initiative. Although they were not particularly active in the negotiations after the fall of the Iron Curtain, several of the states previously dependent on Moscow, such as the former Czechoslovakia and Poland, came out in support of the Declaration after 1989 and thus contributed to a shift in the balance of power within the Working Group in the 1990s. Russia withdrew its own draft declaration between 1990 and 1992.
In 1992, the Working Group presented a preliminary draft in the Human Rights Commission, with a view to submitting a finalised text to the General Assembly at the 1993/94 session.
Due to the many disagreements, it would take another five years before the Working Group was able to present a final text to the Human Rights Commission. Given the disagreements, it came as a surprise, even to many of the participants in the negotiations, that the Working Group was able to reach a consensus. Even the last sessions of the Working Group were characterised by strong disagreements. In fact, as late as in the 1990s, many of the NGOs involved, including Amnesty International, considered withdrawing on several occasions, due to what they saw as the futility of the process.
Amnesty International also published a document in 1995, which criticised what they saw as the blocking tactics of China, Cuba, Mexico and Syria. It appeared that Mexico, and also China were affected by this document, as both countries were working to improve their international reputations at this time. During the last session of the Working Group, where informal negotiations were held well beyond midnight, Mexico changed its position and China did not actively oppose a compromise. Subsequently, at the last informal meeting, which went on until almost 3 AM in the morning, Cuba was isolated in the negotiations, where their very experienced diplomat Miguel Alfonso Martínez could only rely on a weak Syria, and thus realised that it was futile to continue the resistance. The change in the Mexican position, and the fact that China was ready to accept a compromise, are important factors that could explain the successful outcome. Another factor that has been said to have influenced the Cuban position, is that Nelson Mandela, according to South African representatives, had personally called on Fidel Castro and asked him to abandon Cuba’s resistance to the Declaration. In addition, there were many indications that Cuba’s first priority was the abolition of the UN Special Rapporteur mandated to monitor the human rights situation in Cuba. This mandate was discontinued in 1998. It has been alleged that this happened in return for concessions in other UN matters, such as the Declaration.
Content
The final version was undoubtedly a compromise in which no parties were fully satisfied. When the draft was presented to the Human Rights Commission, the NGOs stated that the text represented a “strict minimum” for them. Some delegations, such as Australia, also expressed their disappointment at the weak text. Other states as well, including France and USA, stated that they would have liked to have seen a more ambitious text.
The draft Declaration was adopted by consensus by both the Commission and the General Assembly. The resolution, in which the General Assembly adopted the Declaration, had more than 55 co-sponsors from all regions, although only a few Asian countries co-sponsored the resolution. Israel was the only co-sponsor from the Middle East. Immediately after the adoption by the General Assembly in December 1998, Egypt made a statement on behalf of 26 countries, which, with the exception of Cuba, were all from Asia and Africa.[2] The statement emphasised respect for the sovereignty of States and their territorial integrity and non-interference in their internal affairs. Furthermore, it was stated that the rights and obligations stipulated in the Declaration should be exercised in full conformity with domestic law, and that “any interpretation that creates rights and obligations not provided for by domestic laws does not correspond to our understanding”. In the statement, it was also announced that “various cultural, religious, economic and social background of societies must be taken into account”. Although these countries did not oppose the adoption of the Declaration, they clearly aimed at lowering the expectations with regard to their willingness to implement the Declaration in good faith. Libya, who had joined Egypt’s statement, also made a separate, and even more critical statement where they rejected several provisions of the Declaration.
(The General Assembly’s 53rd Session, 1998, when the Declaration on human rights defenders was adopted.)
Definition
One issue that has been raised is the question of a definition. Those who wanted a strong Declaration did not actively pursue the idea of having a definition of a human rights defender in the Declaration. Many have asked why more efforts were not made to get an internationally accepted definition of a Human Rights Defender. One reason is that it is difficult to find a definition that will cover all the persons and activities that need to be covered by such a definition. We can also question whether we really need a definition. Human rights defenders have the same rights and the same obligations as others. It was also feared that a proposal to have a definition would be met with limitations aimed at weakening the Declaration. The discussions on the title have demonstrated that this fear was not groundless.
The UN Declaration on HR Defenders is not the first international instrument without a definition of the subjects of the instrument. The drafters of the UN Declaration on Minorities had to give up their efforts to define the persons covered by the Declaration, and for many of the same reasons, the UN Declaration on Indigenous Peoples Rights does not contain a definition of indigenous people.
The approach in the UN Declaration was to define HR Defenders by their activities, and to emphasise that these activities are what we want to promote and protect.
The title of the Declaration
Although commonly referred to as “Declaration on Human Rights Defenders”, the term “human rights defender” neither appears in the actual title nor in the text of the Declaration. In 1986, Erica-Irene Daes, rapporteur of the Sub-Commission, suggested that the title should be “Declaration on the protection of human rights defenders”. The Working Group did not, however, follow this recommendation and decided on “Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognised human rights and fundamental freedoms” as its official title. Bearing in mind that the “human rights defenders” was used regularly and without contradiction by everyone during the negotiations, its absence in the Declaration is even more remarkable. It was obvious that countries that did not want a strong declaration, both advocated for the long and rather incomprehensible title, as well as for the avoidance of the term itself. This was probably used as a means to downgrade the importance of the Declaration or at least prevent the Declaration from obtaining a strong and important status. The lengthy and complex language of the text is regarded as a “legacy” from the first years of negotiation when the disagreements between Western states and the Eastern bloc dominated the negotiations. In light of the remaining conflicts even after the fall of the Iron Curtain, it was considered to be difficult to revise the title in later years.
By not using the term “human rights defenders”, the Declaration avoids providing a more specific definition. The rights enumerated in the Declaration are granted to everyone, regardless of their status or activity. This approach was also supported by civil society, including by Amnesty International.
The opposition to using the term “human rights defender” has, however, not disappeared. Even now, when new draft resolutions on human rights defenders are presented, countries such as Russia persevere in their efforts to replace “human rights defender” with “individuals, groups, and organs of society” by referring to the original Declaration, and thus denying the legitimacy of the term “human rights defender”. One reason for this is probably to “compensate” for the lack of a restrictive definition.
Rights and obligations
Already in its Article 1, the Declaration states the right to promote and to protect the realisation of human rights and fundamental freedoms. Among the specific rights set out in the Declaration (articles 5-8) are i.a: the freedom of assembly and association; the right to communicate with NGOs and intergovernmental organisations; freedom of information; the right to publish, discuss and draw public attention to all human rights and fundamental freedom; the right to develop new human rights ideas and to advocate their acceptance; and the right to participate in public affairs. Article 9 contains a right to attend public hearings and to benefit from effective remedies as well as to be protected against human rights violations.
While Western states and NGOs held the view that the Declaration should not deal with obligations of individuals, the question of whether to mention duties was controversial throughout the negotiations in the Working Group.
The states that advocated that restrictions of rights as well as duties should be part of the Declaration, referred to the fact that the title of the Declaration contains the word “Responsibility”. This is also after the adoption actively used by some states to emphasise the obligations of human rights defenders. This could also be seen as an effort to limit the importance of the Declaration.
The compromise solution to this question is contained in Article 18, which states that everyone has duties towards and within the community, but without further specifying what such duties contain. Cuba, China, and Syria made several attempts to limit the Declaration to only those activities that defend one’s own rights and not those of others. These efforts nevertheless failed due to the resistance of many states and NGOs, including Amnesty International, who considered a declaration with such restrictions to be meaningless.
Domestic legislation
Cuba and China, but also to a certain degree Egypt, insisted on the need to include references to domestic legislation in the draft declaration. Several attempts were made to make rights dependent on domestic legislation. One example of this is a Cuban proposal in 1997 concerning the right to attend public hearings, proceedings and trials. Cuba suggested that the following words be added at the beginning: “With the exception of those cases for which national legislation provides otherwise, everyone has the right to …”.
Many Western states and NGOs preferred not to have any reference to domestic legislation. The NGOs made it clear that if there should be a reference to domestic legislation, domestic law could provide a juridical framework for the activities in the Declaration only if the law were in full compliance with the international obligations of the State in the field of human rights.
Following lengthy negotiations, it was agreed to have only one reference in the text to domestic legislation. Article 3 contains the compromise that defines national legislation as the legal framework for the activities mentioned in the Declaration. This was accepted, because it is explicitly stated that it refers to domestic law consistent with the UN Charter and other international obligations of the state in the field of human rights and fundamental freedoms.
Funding
Another difficult issue was the question of funding the activities to defend human rights. This was among the last issues to be resolved and it delayed the negotiations considerably. The Canadian-Norwegian draft Declaration of 1987 specifically included the right to obtain financial resources of any origin, including international, within the scope of freedom of association. Several delegations regarded this a threat to their sovereignty and demanded amendments concerning the defence of human rights funding, adding terms into the final document, such as “lawful”, “open” or “from a legitimate source”. Cuba made it clear that the issue of funding was of fundamental importance to them and proposed that the Declaration should contain a provision prohibiting direct and indirect funding from foreign governments. When the Working Group was unable to find a solution to this question as late as in 1997, Canada expressed the view that “silence on the subject of resources was the most promising approach”.
This was, however, not acceptable for South Africa, who became an active advocate for a strong declaration in the Working Group after the fall of apartheid. While reminding the Working Group of the importance of foreign financing for anti-apartheid NGOs, South Africa paved the way for the adoption of Article 13, which reads: “Everyone has the right, individually and in association with others, to solicit, receive and utilise resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with article 3 of the present Declaration.”
Impact
Twenty years after its adoption, it is fair to say that the Declaration has had considerable impact. The Declaration defines for the first time the right to defend human rights, thus giving explicit legitimacy to activities which often are carried out with risks to one’s health or life. That the Declaration is a result of a fragile compromise, was demonstrated by the fact that several states and many NGOs described the adopted text as an “absolute minimum,” while states that had opposed a strong declaration emphasized the restrictions therein. The adoption of the Declaration has, however, generated a momentum that was not foreseen at the time of its adoption. Although this declaration has not had the same impact as the 1948 Universal Declaration on Human Rights, it has become one of the most commonly referenced UN declarations on human rights. The Declaration has also contributed in creating an identity for human rights defenders all over the world. An alliance of human rights defenders was to a large extent initiated already during the negotiation process. This process of expansion of defenders’ support systems has enjoyed valuable support with further developments at the UN level.
During the drafting process, some of the participants expressed the hope that the preparation of a declaration on human rights defenders could lead to the drafting of a binding convention for protection of human rights defenders. Today, the idea of a binding instrument seems to be abandoned. After the adoption of the Declaration, the NGO community pushed for the establishment of a follow-up mechanism in the UN system as soon as possible, instead of advocating for a binding convention. At the initiative of Norway, the Human Rights Commission in 2000 requested the UN Secretary-General to appoint a Special Representative. The mandate is broad and includes country visits, reporting on the situation of human rights defenders worldwide, as well as to propose possible protection measures. The mandate holder also has the right to take up individual cases of concern with governments. The recommendation passed with 50 members voting in favour and three abstentions (from China, Cuba, and Rwanda). Upon the recommendation of the then High Commissioner for Human Rights, Mary Robinson, Kofi Annan appointed the Pakistani human rights lawyer, Hina Jilani as Special Representative. This was clearly a wise choice. Hina Jilani was already a highly respected and well-known human rights expert and she laid a solid foundation for the mandate. The choice of a woman from the “south” was also a good decision at a time when some governments had tried to present this as a “Western Declaration”. The mandate of a Special Representative was later changed to a Special Rapporteur in the system of Special Procedures of the UN Human Rights Council.
Norway continues to play a leading role concerning human rights defenders by tabling resolutions on the subject in the Human Rights Council and the General Assembly at regular intervals. In addition to these resolutions, the mandate has made significant contributions to the visibility of human rights defenders internationally. Annual reports to the Human Rights Council, as well as to the General Assembly are part of the mandate. The reports explore various themes, such as the situation of the defenders of environmental rights, women rights and LGBTI rights.
The Office of the UN High Commissioner for Human Rights has issued Fact Sheet No. 29, entitled “Human Rights Defenders: Protecting the Right to Defend Human Rights”. This Fact Sheet contains an interpretation and summarizes the Declaration, outlining how it can help and provide protection to defenders.
At the regional level, the Declaration has also had significant results. The Inter-American Commission on Human Rights has set up its own Special Rapporteur, and the African Commission on Human and Peoples’ Rights have established such a position as well. The European Union (EU) and the Council of Europe have also adopted guidelines on human rights defenders. In 2015, the EU initiative ProtectDefenders was established as a mechanism to protect particularly human rights defenders in high-risk situations.
The Declaration is, however, also used to advocate restrictions on the work of human rights defenders. In the UN, Cuba regularly insists that Article 3 of the Declaration (on national legislation) and Article 17, which identifies possible restrictions to the stipulated rights, are sufficiently reflected when resolutions on human rights defenders are negotiated. Russia is also active in such negotiations. An important point for them is to emphasize that the term “human rights defenders” is not contained in the Declaration, and thus insist in replacing it in resolutions and reports by “individuals, groups and organs of society”. These efforts demonstrate that resistance to the core idea of the Declaration still continues.
In spite of the opposition, strong resolutions on human rights defenders have been adopted with consensus both in the Human Rights Council and the General Assembly. The Declaration, as well as the Special Rapporteur and the resolutions adopted on the matter, are of great importance and support for the work of human rights defenders in all regions.
Despite its weaknesses and the continued opposition, the work to follow up the Declaration has given increased international recognition to the important work of human rights defenders and has undoubtedly brought about substantial change.
I would like to end this article with the following quote from Special Rapporteur Michel Forst’s report to the General Assembly in 2018, twenty years after the adoption of the Declaration[3]. His description of the present situation for human rights defenders indicate that it probably would have been just as difficult to reach consensus on the declaration today as it was in 1998. The Special Rapporteur states i.a: “However, beyond recognizing the importance of human rights defenders — individuals or groups who act to promote, protect or strive for the protection and realization of human rights and fundamental freedoms through peaceful means — within the international human rights system, the Declaration represents a paradigm shift in the understanding of the human rights project: from a task accomplished mainly through the international community and States to one that belongs to every person and group within society. The Declaration recognizes that the equal justice, equal opportunity and equal dignity without discrimination long sought and deserved by every person can be realized only by empowering individuals and groups to advocate, agitate and take action for human rights. State action, while necessary and required, is insufficient to fully realize the human rights enshrined in the Universal Declaration of Human Rights.
In the 20 years since the adoption of the Declaration on Human Rights Defenders, the challenges facing those who defend human rights have not diminished, nor has the irrefutable logic that lies behind the Declaration changed. Although the institutional resources for the promotion and protection of defenders within the United Nations, regional organizations and national systems have grown in the past two decades, they remain insufficient to address the ongoing human rights violations around the globe.”[4]
Featured Image: Opening of the annual session of the Commission on Human Rights in 1980, where the first resolution on Human Rights Defenders was adopted; Provided by Author
[1] https://digitallibrary.un.org/record/196062/files/E_CN-4_1986_40-EN.pdf.
[2] https://digitallibrary.un.org/record/264117/files/A_53_679-EN.pdf?version=1
[3] https://documents-dds-ny.un.org/doc/UNDOC/GEN/N18/234/82/PDF/N1823482.pdf?OpenElement
[4] https://www.geschichte-menschenrechte.de/en/hauptnavigation/schluesseltexte/declaration-on-human-rights-defenders-1998/
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