Aadel Collection
Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on human rights defenders in accordance with Commission resolution 2000/61
UNITED
NATIONS
Economic and Social Distr.
Council
GENERAL
E/CN.4/200 1/94
26 January 2001
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-seventh session
Item 17 (b) of the provisional agenda
PROMOTION AND PROTECTION OF HUMAN RIGHTS
HUMAN RIGHTS DEFENDERS
Report submitted by Ms. Hina Jilani, Special Representative of the
Secretary-General on human rights defenders in accordance with
Commission resolution 2000/61
E
GE.01-10638 (E)
E/CN. 4/2001/94
page 2
CONTENTS
Paragraphs Page
Executive summary 3
Introduction
1 - 9
5
I.
THE MANDATE
10-38
6
II.
METHODS OF WORK
39-52
13
III.
ACTIVITIES
53 - 63
15
IV.
COUNTRY SITUATIONS
64- 84
18
V.
CONCLUDING REMARKS
85-91
22
Annexes
I. Note verbale dated 17 November 2000 from the Permanent Mission
of Cuba to the United Nations Office at Geneva addressed to the
Special Representative of the Secretary-General
II. Letter dated 5 January 2001 from the Special Representative of the
Secretary-General to the Permanent Representative of Cuba to the
United Nations Office at Geneva
28
31
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Executive summary
This is the first report presented by the Special Representative of the Secretary-General
on human rights defenders, Ms. Hina Jilani. It is submitted pursuant to Commission
resolution 2000/61. The report contains the initial considerations on how the Special
Representative perceives her mandate, the methods of work and her activities and a brief
summary of urgent appeals and communications to and from Governments followed by
concluding remarks. With regard to country situations, the Special Representative sent
seven urgent appeals and four communications between the time she initiated her work at the
end of September 2000 to the beginning of December 2000. Amongst those, five were sent
jointly with other thematic mechanisms, in particular the Special Rapporteur on torture, the
Special Rapporteur on extrajudicial, summary or arbitrary executions, the Chairman-Rapporteur
of the Working Group on Arbitrary Detention and the Special Rapporteur on violence against
women.
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 (hereinafter “the Declaration”) will form the basis in determining and developing the
scope of the mandate. Articles 3 and 4 of the Declaration define the juridical framework for the
implementation of the mandate. The Special Representative will carry out her mandate in a
spirit of cooperation and will collaborate with existing special procedures, United Nations treaty
bodies, United Nations agencies and other organizations, regional human rights mechanisms and
non-governmental organizations.
The methods of work adopted by the Special Representative are largely based on those
applied by other thematic mechanisms, with due regard for the specificity of her mandate.
Communications will consist of urgent appeals and letters of allegation transmitted to
Governments; in cases of particular gravity she may also issue a press statement, which would
follow a communication addressed to the Government(s). She will undertake country visits and
field missions, drawing upon the existing protocols and criteria insofar as they apply to her
mandate. The Special Representative will make herself available on the widest possible basis to
the greatest extent of her abilities and will establish direct contact with Governments, relevant
authorities and institutions as well as with the above-mentioned organizations.
In addition to the seven urgent appeals and four communications to Governments, the
Special Representative also sent a note verbale to permanent missions in Geneva and
non-governmental and other organizations asking them to provide any information relevant to
her mandate. Furthermore, she has held consultations with the Secretary-General, the
High Commissioner for Human Rights and her Office as well as with Governments and NGOs.
The Special Representative concludes her report with reference to issues of concern
regarding human rights defenders. The recurrent problem in the protection of human rights
defenders remains the lack or inefficient implementation of the normative frameworks. There
have already been a considerable number of communications which allege serious human rights
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violations targeting human rights defenders, from which no region is free. The risks faced by
human rights defenders are serious, as evidenced by the number of defenders who were the
subject of urgent appeals and communications from other thematic mandates over the last two
years. The measure of the success of the mandate will be the security that this mechanism
provides for those acting for the promotion and protection of human rights. In this regard, the
Special Representative will recommend effective strategies to better protect human rights
defenders and present her recommendations to the Commission on Human Rights and the
General Assembly in her subsequent reports.
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Introduction
1. By its decision 1985/1 12 of 14 March 1985, the Commission on Human Rights
established an open-ended working group to draft an instrument on human rights defenders. 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
(hereinafter “the Declaration”) was adopted, by consensus, by the General Assembly in its
resolution 53/144 on 9 December 1998, following 13 years of a negotiation process involving
Member States and non-governmental organizations (NGO5).
2. The consensus of the Member States in adopting the Declaration represented a clear
commitment to acknowledge, promote and protect the work and rights of human rights defenders
around the world. The recognition by the international community of its responsibilities in this
area was rightly considered by many as a turning point in improving the protection of human
rights defenders. By subscribing to the principles that the Declaration underpins, States
acknowledged the important role of international cooperation in protecting individuals, groups
and associations in their work which contributes to the effective elimination of all violations of
human rights and fundamental freedoms.
3. Given the consensus of the international community in recognizing the legitimacy of the
important work of human rights defenders, the continuous reporting of violations of the rights of
human rights defenders in many parts of the world was considered to be a matter of serious
concern. Several United Nations organs have in the past raised the issue of human rights
defenders around the world. Reference should be made inter alia to General Assembly
resolution 54/170 in which the Assembly noted with deep concern that, in many countries,
persons and organizations engaging in promoting and defending human rights were facing
threats, harassment and insecurity as a result of those activities. The Subcommission on the
Promotion and Protection of Human Rights also expressed concern over the situation of human
rights defenders around the world. In resolutions 1998/3 and 1999/3, the Subcommission
condemned the murders of 17 named human rights defenders and requested the
High Commissioner for Human Rights to undertake inquiries about the security of 18 other
named individual human rights defenders. In a report to the Subcommission
(E/CN.4/Sub.2/2000/5), the High Commissioner provided information on the individuals
concerned.
4. In 1999, the Commission on Human Rights and the General Assembly encouraged
Member States to implement the Declaration and requested the Secretary-General to report on
the extent to which the Declaration was being implemented'. Interesting discussions followed
arguing in favour or against the establishment of a specific mandate.
5. To promote and achieve effective implementation of the Declaration, the need for
establishing a special mechanism for reporting on and promoting the situation of human rights
defenders as well as on possible means to enhance their protection was felt most pertinent by
many delegations. The mechanism was considered as the logical next step by the international
community in giving effect to the Declaration aiming to protect the existence and activities of
human rights defenders; it would in turn reinforce concerted efforts, at both national and
international levels, in promoting and protecting human rights.
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6. Many Governments agreed that the new mechanism, by giving effect to the Declaration,
would enhance national and international awareness of problems involving violence and
oppression against human rights advocates and activities. This would also draw Governments'
attention to their obligations to promote and protect human rights, in particular those of human
rights defenders. Additionally, a new mechanism to promote and to implement the Declaration
was much sought after and welcomed by non-governmental organizations and members of both
national and international civil societies. They considered the mechanism an important and
necessary step towards greater recognition and protection of the work of human rights defenders
worldwide.
7. There were, however, concerns expressed by other delegations over the fact that a new
mechanism might duplicate the work of existing mechanisms and be a source of confusion, since
the latter already dealt with issues relating to the protection of human rights defenders.
Additionally, it was stated that a new mechanism might draw on already limited resources
available to existing mechanisms and might thus divert much needed resources from them.
8. After extensive discussion, the Commission on Human Rights, by its resolution 2000/6 1,
requested the Secretary-General to appoint, for a period of three years, a special representative
who shall report on the situation of human rights defenders in all parts of the world and on
possible means to enhance their protection in full compliance with the Declaration. This request
was endorsed by the Economic and Social Council in its decision 2000/220.
9. Ms. Hina Jilani (Pakistan) was appointed Special Representative by the
Secretary-General. In the present report to the Commission, the Special Representative will
share her initial considerations as to how she intends to conduct her mandate, how she perceives
her mandate and the activities foreseen under this mandate, and make initial comments on issues
of particular relevance to the carrying out of her mandate. Attaching particular importance to the
arguments put forward in the discussion of the new mandate, it is the intention of the Special
Representative to establish cooperation with all relevant United Nations mechanisms and initiate
fruitful and comprehensive cooperation with States and non-State actors.
I. THE MANDATE
10. The mandate of the Special Representative of the Secretary-General on human rights
defenders is contained in Commission resolution 2000/6 1. In paragraph 3 of this resolution, the
Special Representative is requested to report on the situation of human rights defenders in all
parts of the world and on possible means to enhance their protection in full compliance with the
Declaration. The main activities of the Special Representative shall be:
(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;
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(c) To recommend effective strategies better to protect human rights defenders and
follow up on these recommendations.
11. The Special Representative is also requested to submit annual reports on her activities to
the Commission on Human Rights and to the General Assembly and to make any suggestions
and recommendations enabling her better to carry out her tasks and activities (para. 6).
12. In the same resolution, the Commission urged all Governments to cooperate with and
assist the Special Representative in the performance of her tasks and to furnish all information in
the fulfilment of her mandate upon request (para. 4).
Scope of the mandate
13. The Declaration forms the foundation for determining and developing the scope of the
mandate, and for any action or initiatives undertaken by the Special Representative. In the
application of the mandate to human rights defenders, the Special Representative will draw, in
particular, upon article 12 read with the fourth paragraph of the preamble to the Declaration, 3 and
will be guided by the Charter of the United Nations and the Universal Declaration of Human
Rights. The United Nations international human rights instruments will constitute a more
precise legal background against which the Special Representative will consider her mandate. In
particular, the International Covenant on Civil and Political Rights (particularly its articles 2 (3),
12, 17, 19, 21, 22), the International Covenant on Economic, Social and Cultural Rights, the
Convention against Torture an Other Cruel, Inhuman or Degrading Treatment or Punishment
(particularly its article 13), the International Convention on the Elimination of All Forms of
Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against
Women, the Convention on the Rights of the Child, and the Freedom of Association and
Protection of the Right to Organize Convention, (No. 87) of the International Labour
Organization.
14. Additionally, the following conventions or declarations will provide a relevant
framework for the implementation of the Declaration: the Vienna Declaration and Programme
of Action, the Beijing Declaration and Platform for Action, Women 2000: Gender Equality,
Development and Peace for the Twenty-first Century (known as “Beijing plus 5”), the
Declaration on the Elimination of Violence against Women, the Body of Principles for the
Protection of All Persons under Any form of Detention or Imprisonment, the Declaration on the
Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, the Johannesburg Principles on National Security, Freedom
of Expression and Access to Information, the Basic Principles on the Role of Lawyers, the Basic
Principles on the Independence of the Judiciary, the Declaration on the Protection of All Persons
from Enforced Disappearance, the Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, the Principles on the Effective Prevention and Investigation of
Extra-legal, Arbitrary and Summary Executions, and the Declaration on the Elimination of All
Forms of Intolerance and of Discrimination Based on Religion or Belief The Special
Representative wishes to point out that she considers all activities in relation to human rights and
fundamental freedoms recognized in international human rights instruments and commitments,
including the Declaration, as activities for the promotion, protection and realization of human
rights. She is also conscious of the fact that certain provisions of the aforementioned
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international instruments are of particular relevance to the protection and promotion of the rights
and fundamental freedoms of human rights defenders considered either as individuals or as
groups and/or organs of society. This is of specific importance, since the Declaration addresses
the protection and promotion of human rights defenders according to this particular distinction.
She will encourage, wherever and whenever possible, cooperation with relevant bodies entrusted
with monitoring the implementation of the said instruments and build on their experience.
15. It is, however, essential to bear in mind that, prior to Commission resolution 2000/61, no
particular mandate had been tailored to focus on specific rights or freedoms for human rights
defenders. A number of the thematic mandates established by the Commission have, within their
mandate, responded to particular forms of violations against human rights defenders. A
summary of such recent information is provided in section IV below. The Special
Representative takes note with appreciation of such action and looks forward to developing a
mutually supportive and cooperative framework forjoint action.
16. Nevertheless, it should be pointed out that initiatives taken by different thematic
mechanisms had to remain within the strict limits of the juridical framework within which the
special procedure concerned was operating. This afforded less scope for a comprehensive
approach to the implementation of rights recognized in the Declaration. Under the mandate of
the new mechanism, those engaged in the promotion and protection of human rights are the
focus of protection. This allows the Special Representative not only to respond to the different
forms of violations to which defenders are subjected, but also take into consideration situations
and conditions that threaten or impede the work or security of defenders.
17. The Special Representative considers that the extent of her responsibility will have to be
considered with this distinction in mind and in the light of the nature and extent of the alleged
human rights situation under reference. The following considerations would be relevant for
determining the role of the Special Representative:
(a) When violations of rights of human rights defenders, as individuals or groups of
individuals, occur as a consequence of events of a wider dimension (for instance an internal
conflict), it is legitimate to consider that other thematic or geographic procedures should have a
leading role to play. In such cases, the Special Representative will, in close coordination with
them, deal with the consequential aspects of the said violations or situation for the
implementation of the Declaration and the protection of human rights defenders;
(b) When a situation occurs where rights of human rights defenders, as individuals or
groups of individuals, are specifically targeted, it is legitimate to consider that the Special
Representative will have to play the leading role. Obviously, such a situation may take the form
of specific violations of human rights which are the subject of other more specific thematic or
geographic mandates of the Commission. Accordingly, the concerned procedure would have to
focus on the consequential aspect of such a situation in close concurrence and cooperation with
the Special Representative.
The Special Representative intends to discuss this matter further with other mandate-holders at
the next annual meeting of special rapporteurs/representatives, independent experts and
chairpersons of working groups of the Commission on Human Rights.
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18. For the effective implementation of her mandate, the Special Representative deems it
necessary to include in the scope of inquiry conditions in the social, economic, political and
other fields, as well as the legal guarantees required to ensure that all persons are able to enjoy
these rights in practice (article 2 of the Declaration).
19. Article 9 of the Declaration 4 affirming the basic right of everyone to benefit from an
effective remedy in the case of any violation of human rights, and to be protected in the event of
such violation must be read in the context of the applicable international human rights standards.
Importantly, article 9 (3) of the Declaration is non-exhaustive, using the term “ inter alia” , and
applies to everyone, “individually” and “in association with others”, meaning that “effective
remedies” in the context of the Declaration must be read broadly.
20. Furthermore, the concept of effective remedies, as with all guarantees referred to in the
Declaration, cannot be interpreted in any way that restricts or impairs the applicability of the
relevant international human rights standards. 5
21. The mandate to seek information allows the Special Representative to request invitation
from Governments to conduct field missions to countries where the situation so demands, based
on the information received by her. The Special Representative will attach particular interest in
developing a series of practical guiding and non-binding criteria that would allow her to
determine the situations in which a field mission may be warranted. Among those issues that she
will have to take into account are:
(a) The priority attention which should be given to cases where the alleged perilous
situation can be addressed more effectively under her mandate;
(b) The rights or freedoms of human rights defenders which are not the subject of any
other instruments or mandates (e.g. freedom of association, freedom of movement, etc.);
(c) Cases where the authorities have expressed some prima facie interest in
developing constructive working relations with her mandate; and
(d) The need to maximize the use of resources and time.
22. “Other interested actors” in paragraph 3 (b) of resolution 2000/6 1 may be interpreted to
include individuals, groups and agencies allegedly involved in the violation of human rights, or
those whose cooperation the Special Representative may seek for the protection of human rights
defenders, or for the improvement of conditions that threaten the security of defenders.
23. Initiatives, actions and strategies for the prevention of conditions resulting in harm to
defenders is an important aspect of this mandate. In this respect the scope of activities under this
mandate extends to seeking advice and information on good practices and recommending
technical assistance as a measure for improvement of the situation of human rights affecting the
work of defenders. This will require close cooperation with the team at the Office of the
High Commissioner for Human Rights (OHCHR) that deals with technical cooperation and the
OHCHR field presences with a view to formulating such projects as might be of relevance in any
given situation.
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24. States have the primary responsibility and duty to protect, promote and implement
human rights. Nevertheless, groups and individuals, whether armed or otherwise, who violate or
threaten the rights recognized by the Declaration also have an obligation to respect them. This
respect can be ensured by the adoption of the necessary legal policies and administrative
measures for the effective protection of human rights defenders by States within whose
jurisdiction these groups operate. The Special Representative therefore regards communications
and dialogue with Governments as an important aspect of the mandate, regardless of the source
of the violation or threat of violation.
Juridical fnimework
25. Articles 3 and 4 define the juridical framework for the implementation of the
Declaration. Article 3 provides that:
“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 the present
Declaration for the promotion, protection and effective realization of those rights and
freedoms should be conducted.”
Article 4 provides that:
“Nothing in the present Declaration shall be construed as impairing or contradicting the
purposes and principles of the Charter of the United Nations or 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.”
26. Articles 3 and 4 must be read together with the Declaration's preamble which reaffirms
and reiterates the importance of the Charter of the United Nations as well as that of international
human rights law. It also emphasizes (in the seventh paragraph of the preamble) that “the prime
responsibility and duty to promote and protect human rights and fundamental freedoms lie with
the State” (see also article 2 of the Declaration), but that “the absence of international peace and
security does not excuse non-compliance” (fifth paragraph of the preamble).
27. Consequently, articles 3 and 4, read in the light of the Declaration's preamble, require the
Special Representative to place primary emphasis on domestic law, but in a way that does not
restrict or derogate from the application of pertinent international human rights standards. The
Special Representative shall therefore take full account of the domestic legal context while
reaffirming the applicability and integrity of international human rights norms. This implies
further that the Special Representative's mandate is intended to comprehend fully the
applicability of international human rights norms to the domestic legal context, not only in
seeking to identify shortcomings and problem areas, but also in recommending constructive
solutions at the domestic, regional and international levels.
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28. In this context, it is of particular importance to note that, in its consideration of reports
submitted by States parties under article 19 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, the United Nations Committee against Torture
considers whether the pertinent domestic law of the country under examination is consistent with
the Declaration.
29. Accordingly, the Special Representative takes note of article 3 of the Declaration and, in
her assessment and evaluation of a situation, will give due regard to domestic law that is
consistent with the Charter of the United Nations and other international obligations of the State
in the field of human rights. She is also fully conscious of article 4 of the Declaration and will
be guided in her initiatives by provisions of human rights instruments and the standards laid
down therein.
Cooperation with existing special procedures
30. As recalled earlier, prior to the establishment of this new mandate, there was no specific
international mechanism providing effective protection to human rights defenders whose life,
physical integrity, safety and freedoms might have been attacked owing to their work for the
promotion and protection of human rights. United Nations bodies and the special procedures and
working groups of the Commission on Human Rights had therefore taken a stand regarding
instances of specific violations of the rights of human rights defenders. In the light of the
foregoing, the Special Representative intends to build on these experiences and to discuss with
other existing special procedures possible forms of cooperation.
31. At the 1999 meeting of special rapporteurs/representatives, independent experts and
chairpersons of working groups of the special procedures of the Commission on Human Rights,
it was noted that while all the existing mechanisms were committed to cooperating among
themselves on the protection of human rights defenders, the nature of the problem was not such
that it could be covered satisfactorily by them alone in the discharge of their specific mandates.
Accordingly, the new situation that has emerged from the establishment of this mandate and the
guidelines proposed above will need to be discussed at the next meeting of the special
procedures in 2001. The Special Representative is pleased to note that this will be done under a
separate agenda item.
32. Indeed, it is her strong view that the creation of the new mandate does not mean that the
other special procedures should henceforth refrain from dealing with issues involving human
rights defenders. Several special procedures, as indicated earlier, have devoted a section of their
reports to this area, which is essential for presenting the different dimensions of the subject of
their mandate. The Special Representative is sure that this will continue, and will substantiate
the need for the initiatives she takes under her mandate.
Cooperation with United Nations treaty bodies
33. The Special Representative appreciates the fact that, in recent years, the United Nations
treaty bodies, through their respective mechanisms, have repeatedly expressed concern about
intimidation and harassment, in particular by government officials, ofjournalists and human
rights activists, including members of human rights non-governmental organizations, who have
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been subjected to prosecution, fines and imprisonment. Treaty bodies were, however, limited in
their consideration of the situation of human rights defenders by their conventional obligation to
deal only with the situation prevailing in States parties. 6
Cooperation with the specialized agencies and other organizations
34. In carrying out her mandate, the Special Representative intends to explore the
possibilities of collaboration with other United Nations agencies which, in their respective fields
of competence, have established procedures in promoting and protecting the fundamental rights
and freedoms of human rights defenders.
35. The Special Representative will pay particular attention to procedures developed within
the specialized agencies which are of direct or indirect relevance to the protection and promotion
of the rights set forth in the Declaration. In particular, the Special Representative will link with
the International Labour Organization (ILO) in its efforts aiming at protecting labour rights,
particularly the rights of trade unionists. 7
36. The Special Representative will also endeavour to open avenues of cooperation with
United Nations bodies and agencies such as the Office of the United Nations High
Commissioner for Refugees (UNHCR), the United Nations Development Fund for Women
(UNIFEM), the United Nations Children's Fund (UNICEF), the World Food Programme (WFP)
and the World Health Organization (WHO) or other organizations such as the International
Committee of the Red Cross (ICRC). Indeed, as protectors of refugees and humanitarian
workers who, in some appropriate cases, are performing the roles of human rights defenders,
these agencies will offer invaluable sources of information and opportunities for experience
exchange. The Special Representative will also look forward to cooperating with the
United Nations Development Programme (UNDP) and benefit from its assistance in carrying out
her mandate.
Cooperation with regional human rights mechanisms
37. The Special Representative will seek to establish a working relationship with regional
intergovernmental human rights mechanisms, including those under the Organization of
American States, the Council of Europe, the Organization for Security and Cooperation in
Europe (OSCE) and the Organization of African Unity, and to exchange information with their
secretariats and experts on situations involving human rights defenders. This will allow her also
to develop a regional approach to the problems encountered by human rights defenders and to
recommend regional strategies. Iii particular, following the precedent of existing regional
protection mechanisms or initiatives such as niedidas cautellares within the Inter-American
Commission on Human Rights or the creation of Passports for Freedom for Human Rights
Defenders within the European Union, the Special Representative will seek the active
cooperation of these bodies in order to devise regional strategies for enhancing the protection of
human rights defenders and for better implementation of the Declaration, and intends to explore
the possibilities of initiating other regional protection measures in compliance with her mandate.
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Cooperation with NGOs
38. The Special Representative recognizes the importance of the work of human rights
NOOs in the creation of this mandate and their support for establishing this mechanism. NOOs
would be the major source of information in the work of the Special Representative. The legal
and normative framework for the mandate can be best developed in consultation with NOOs,
many of which have already established programmes and developed networks for the protection
of human rights defenders. The Special Representative also hopes to establish links with human
rights centres and institutes and to draw upon their expertise for developing the scope of the
mandate.
II. METHODS OF WORK
39. In devising methods of work for the implementation of her mandate the
Special Representative is aware that the protection of human rights defenders has multiple
dimensions and would require varied actions to obtain the best results. The primary concern in
the methodology would be to ensure wider accessibility, prompt response, and initiatives that are
effective. Wide dissemination on the establishment of the mechanism would be important for
accessibility of the mandate. In this regard, publicizing the Declaration as a part of human rights
education should be considered.
40. The Special Representative understands the need to maintain the independence and
credibility of the mandate. It would therefore be necessary to employ methods for verification of
information through a network of sources. Many such networks already exist and are well
respected for their integrity and reliability. The Special Representative will establish working
methods for the most efficient discharge of her mandate. She also intends to explore how treaty
bodies and other non-treaty mechanisms have regarded the Declaration in the execution of their
mandates and to build upon methods devised by them for the implementation of the Declaration.
41. The mandate of the Special Representative implies a combined approach that considers
the general situation of human rights defenders around the world as well as concrete incidents
and individual cases. Therefore, the work of the Special Representative will involve both the
study of phenomena related to human rights defenders and action on concrete incidents and
cases.
42. The methods of work already adopted by the Special Representative are largely based on
those applied by other thematic mechanisms, with due regard for the specificity of her mandate.
In particular, she takes note of the methods of work used by the Special Rapporteur on
extrajudicial, summary or arbitrary executions (see E/CN.4/1994/7, paras. 13-67) and the
Special Rapporteur on torture (see E/CN.4/1997/7, annex).
43. The Special Representative decided to adopt the urgent appeal procedure when the cases
involved are of particular gravity. An urgent appeal is made on the basis of information received
by the Special Representative and expresses concern over a case or a situation involving human
rights defenders and human rights organizations. When making a determination as to whether an
urgent appeal should be sent, a certain number of factors will be taken into account, in particular
whether the source of information is reliable and the information consistent. Corroborative or
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supplementary information will also be sought from sources other than the alleged victims or
their representatives. The urgent appeal, which is essentially preventive, is directly addressed to
the Ministry for Foreign Affairs or other relevant department of the Government of the country
concerned.
44. When a situation in a particular country is of particular concern and gravity, the
Special Representative will issue a press statement to inform the international community of the
situation or case. The press statement will follow a communication addressed to the
Government(s), and will be based on issues taken up with the Government(s) in that
communication.
45. The Special Representative also decided to transmit to Governments letters, on the basis
of credible and reliable information received, alleging violations of the rights and fundamental
freedoms of human rights defenders. Cases of particular incidents/situations regarding freedom
of association in general will also be transmitted.
46. The communications - urgent appeals and allegations - shall be transmitted to
Governments, which shall be asked to reply after having carried out the appropriate inquiries so
as to provide the Special Representative with the fullest possible information.
47. The dialogue established with Governments by the Special Representative and the
transmission of allegations concerning their countries in no way implies any kind of accusation
or value judgement on the part of the Special Representative. Communications with
Governments are intended to draw their attention to incidents, situations and conditions that
require action or restraint on the part of the State for the protection of human rights defenders.
The Special Representative is eager to pursue a constructive approach for the improvement of
the situation of human rights defenders together with the Government(s) concerned.
48. Country visits and field missions, which imply the consent of the Government concerned,
will be an integral part of the Special Representative's work. She will draw upon the already
existing protocols and criteria for such visits and missions insofar as they apply to her mandate,
and expects to develop additional criteria where necessary for better implementation of her
mandate.
49. The Special Representative considers the follow-up of cases and country visits to be an
important aspect of her mandate. In this regard, where responses received from Governments to
the communications sent are considered unsatisfactory by the Special Representative, she will
seek additional information from the source/victim by transmitting to them the content of the
Government's response. The cases/situations will continue to be followed by the Special
Representative until a satisfactory response is received. With regard to country visits, the
Special Representative will periodically remind the Governments concerned of the observations
and recommendations formulated in the respective reports, requesting information on the steps
taken to implement them.
50. As a general rule, the Special Representative will make herself available on the widest
basis to the greatest extent of her abilities. She will seek to establish - and has already taken
steps in this direction - direct contact with Governments, relevant domestic authorities,
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intergovernmental organizations, relevant institutions, international, regional and national
non-governmental organizations, academic institutions and individuals. Owing to the nature of
her mandate, regular contact will be maintained with NGOs in order to seek information from
them. In this regard, specific guidelines - similar to the ones developed by other mechanisms -
on how to submit information to the Special Representative will be elaborated in the near future
and will be accessible on the OHCHR Web site.
51. The Special Representative would like to take advantage of the existing field presences
of the Office of the High Commissioner for Human Rights throughout the world. In this regard,
she will not only seek information from them but also consult them concerning concrete cases of
violations and situations. For any communication sent to the Government of a country which
has a field presence, a copy will systematically be sent to the field office concerned. In this
regard, the Special Representative considers cooperation with OHCHR to be particularly
important to broadening the impact of her work. She would like OHCHR, in the elaboration of
its technical cooperation programmes, to take into account the recommendations she would make
on the countries concerned. The Special Representative will also make herself available for any
consultations in this regard.
52. In addition, the Special Representative considers research to be an important
component of the mandate in elaborating an effective strategy to protect human rights defenders.
Priority should be given to studies which would increase knowledge about repressive trends,
measures and practices affecting human rights defenders. A first study should be undertaken on
national legislation on freedom of association and how it can be used to affect, negatively or
positively, the promotion of human rights and the work of defenders. To this end, the
Special Representative will seek support from and collaboration with any interested
institute/foundation/university in order to initiate research in areas relevant to the development of
the mandate.
III. ACTIVITIES
53. The Special Representative initiated her work at the end of September 2000. Owing to
the large number of allegations she has already received providing details of incidents and cases
of violations of the rights of human rights defenders, the Special Representative has begun to
transmit summaries of these cases to the Governments concerned. In this regard, she sent seven
urgent appeals to the following countries: Columbia (1), Guatemala (1), Indonesia (3) and
Tunisia (2). In addition, the Special Representative sent four communications to the following
countries: Indonesia (2), Iran (Islamic Republic of) (1) and Malaysia (1). During this period the
Special Representative joined with the Special Rapporteur on torture to send two urgent appeals,
to Indonesia. The Special Representative also joined with the Special Rapporteur on
extrajudicial, summary or arbitrary executions to send urgent appeals in two cases, to Guatemala
and Indonesia respectively. As well, one communication was sent jointly with the
Chairman-Rapporteur of the Working Group on Arbitrary Detention (Indonesia), the
Special Rapporteur on violence against women (Indonesia) and the Special Rapporteur on torture
(Indonesia).
54. In accordance with paragraph 3 (a) of resolution 2000/6 1 requesting the Special
Representative to seek, receive, examine and respond to information on the situation of human
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page 16
rights defenders, a note verbale dated 10 October 2000 was sent to all permanent missions to the
United Nations and the United Nations Office at Geneva to request any information deemed
relevant to her mandate.
55. Replies were received from the Governments of Cuba, Kuwait and Azerbaijan. The
Government of Cuba sent a response to the Special Rapporteur on 17 November 2000 explaining
that it opposed the proposal to appoint a special representative on human rights defenders
because the countries promoting the initiative had “upset a delicate balance reached on the
subject”. The Government expressed several reservations and apprehensions regarding the
implementation of the mandate. The Special Representative appreciates the openness with
which the Government of Cuba expressed its opposition to the creation of the mechanism, and
availed herself of this opportunity to initiate a dialogue with the Government on a clearer
understanding of the mandate. To the extent that the response of the Government raised
questions of principle regarding the mandate, the Special Representative decided to reply. The
communication received from the Government of Cuba and the response of the Special
Representative are annexed to this report.
56. In a communication dated 23 November 2000, the Government of Kuwait expressed its
support of the mandate, since the defence of human rights is a praiseworthy act that deserves
commendation. However, they noted that such acts should be undertaken through authorized
channels and within the limits of the law and national sovereignty by State-recognized national
bodies. In this connection, the State of Kuwait has attached great importance to human rights
law in its legislation, internal regulation and its Constitution, which prohibits various violations
of human rights and establishes the principle that there is no crime or punishment except as
defined by law. Under the Constitution, any individual has the right to petition the public
authorities and everyone has a guaranteed right to legal redress. This applies equally to
individuals and groups defending human rights seeking protection from acts of violations to
which they were subjected while discharging their functions, or redress and amends for any
damage suffered. The response of the Government of Kuwait is available at OHCHR.
57. In its communication dated 12 December 2000, the Government of Azerbaijan set out the
methods by which it safeguards the rights and freedoms of individuals and citizens, and
confirmed that the international treaties to which Azerbaijan is a party are an integral part of the
Azerbaijani legal order. Azerbaijan has taken several human rights measures including the
planned institution of an ombudsman or commissioner for human rights, the abolition of capital
punishment and the reinstatement of presidential pardons. Further, a new criminal code was
introduced and legislation regulating the police, the procurator's office, the legal profession and
notaries was adopted. In addition, measures are being taken to ensure freedom of the press,
freedom of non-governmental organizations, the facilitation of a trade union movement, the
increased participation of women in public affairs and the amelioration of the situation of
refugees and forcibly displaced persons.
58. By communication dated 12 October 2000, requests for information were also sent to the
main international and regional non-governmental and other organizations. In response to this
request, the Special Representative has received introductory and congratulatory messages from
the following organizations: African Centre of Technology (6 December 2000), Asia Pacific
Forum of National Human Rights Institutions (6 November 2000), Asia-Pacific Human Rights
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Information Center (24 October 2000), Centre for Policy Research (30 October 2000),
United Nations Latin American Institute for the Prevention of Crime and the Treatment of
Offenders (18 October 2000), International Council of AIDS Service Organizations
(5 December 2000), Medical Rehabilitation Center for Torture Victims (24 November 2000),
National Organization of Defenders for Human Rights Activists (22 September 2000).
59. The Special Representative would like to thank all the Governments and
non-governmental organizations that replied to her notes verbales.
60. After her appointment in August, the Special Representative held consultations with the
Office of the High Commissioner for Human Rights in September. She had the opportunity to
meet with the High Commissioner and discuss conceptual and practical issues connected with
the implementation of the mandate. The High Commissioner's commitment to the cause of
human rights defenders and her support for the new mechanism was apparent in the help and
guidance she provided to the Special Representative in taking practical steps for initializing her
work. The Special Representative was also able to meet with and be briefed by thematic and
geographic experts in OHCHR, who helped her become more familiar with the United Nations
human rights system and the mechanisms working within it.
61. The Special Representative held consultations in New York at the end of October 2000.
She met with the Secretary-General to discuss the mandate entrusted to her, at which time the
Special Representative outlined her understanding of the mandate and some of the issues of
special concern to her regarding the situation of human rights defenders. The Special
Representative is greatly encouraged by the Secretary-General's interest in the mandate and will
keep the Office of the Secretary-General informed with regard to the development of her
mandate and any issues on which she may require his guidance or support, for the better
implementation of the mandate.
62. The Special Representative also initiated contact with Governments through an informal
dialogue with delegations at the Third Committee held on 31 October 2000 during the
fifty-fifth session of the General Assembly in New York. While in Geneva in December 2000,
she met with regional groups of the Commission on Human Rights.
63. Since September, consultations with NGOs have also been an important part of her
activities. She met with international NGOs to discuss with them the potential scope and
development of the mandate and to receive briefings on the situation of human rights defenders.
In this regard, the Jacob Blaustein Institute hosted a seminar on 20 September 2000. The
International Council for Human Rights Policy set up consultations with various other NGOs on
19 October 2000. On 1 and 2 December 2000, International Service for Human Rights held a
seminar on the mandate as well. During this particular meeting, the Special Representative had
the opportunity to discuss cooperation with other thematic mechanisms. In this regard, the
Special Representative sent a letter on 23 October 2000 to special rapporteurs and chairpersons
of working groups inviting their cooperation and seeking their advice, to which the Special
Representative continues to receive very encouraging and positive responses.
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IV. COUNTRY SITUATIONS
64. This section contains brief summaries of urgent appeals and communications to and from
Governments, along with the observations of the Special Representative. In order to leave
enough time for Governments to respond, only the communications sent before
1 December 2000 are included in the report.
Colombia
Communication sent
65. On 12 October 2000, the Special Representative sent an urgent appeal concerning the
disappearance on 6 October 2000 of Angel Quintero and Claudia Patricia Monsalve PulgarIn,
two members of the Asociación de Familiares de Detenidos-Desaparecidos (ASFADDES), in
MedellIn. It has been reported that Mr. Quintero had received threats prior to his disappearance
as a result of his investigation of the disappearance of Ruben Usaga Higuita, Wilson Usaga
Higuita and Arvey Poso Usaga on 25 August 2000. According to the information received,
Ms. Monsalve PulgarIn had been working on her brother's disappearance in 1995 to which
police officers have allegedly been linked. In her communication, the Special Representative
expressed concern regarding the threats that members of ASFADDES had allegedly received
over the last few months.
Communications received
66. The Government of Colombia sent two letters of reply, on 24 October
and 30 October 2000, in which it stated that an investigation into the disappearance of
Mr. Quintero and Ms. Monsalve PulgarIn had been opened on 10 October 2000 by the
Cuerpo Técnico de Investigaciones de MedellIn.
Observations
67. The Special Representative thanks the Government of Colombia for its prompt replies
but continues to be concerned about the safety of these two human rights defenders who, at the
date of the finalization of this report, are still missing.
Guatemala
Communication sent
68. On 24 November 2000, the Special Representative, together with the Special Rapporteur
on extrajudicial, summary or arbitrary executions, sent an urgent appeal concerning death threats
to which the workers of the National Human Rights Procurator (ProcuradurIa de Derechos
Humanos) of Solola have been subjected following the opening of an investigation into the
murder of Teodoro Saloj. Concerns were expressed for the safety of the workers, especially as
they had announced on 6 November 2000 that the results of their investigation pointed to the
involvement of nine agents of the PolicIa Nacional Civil.
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Observations
69. No reply from the Government has been received so far.
Indonesia
Communication sent
70. On 2 November 2000, the Special Representative sent an urgent appeal jointly with the
Special Rapporteur on torture with regard to the arrest of M. Yusuf by the Indonesian security
forces on 1 November 2000 in East Aceh. His arrest was reportedly connected to his
participation in the organization of the People's Congress for Victims of Human Rights
Violations in Aceh, which was to take place from 4 to 6 November. M. Yusuf was believed to
be held without charge and fears were expressed that he was at risk of torture as he was detained
incommunicado at an unknown location.
71. On 7 November 2000, the Special Representative transmitted a communication
requesting information concerning an increase of acts of intimidation by the military and the
police against human rights defenders in the province of Aceh. The Special Representative
expressed concern, in particular, with regard to: the assassination on 16 September 2000 in
Banda Aceh of Safwan Idris, the rector of the Al-Raniry State Islamic Institute and a human
rights activist; the killing of Jafar Siddiq Hamzah, a prominent human rights lawyer and activist
found dead on 3 September 2000 near Medan in what is allegedly a known dumping ground for
victims of the Indonesian military and police; and the abduction and beating of Muzakir and
Mohamed Saleh, two student activists, on 19 September 2000 in Banda Aceh, allegedly by
members of the Indonesian police intelligence force, POLRA.
72. The Special Representative sent an urgent appeal on 10 November 2000 together with
the Special Rapporteur on torture regarding the arrest of Rush and Sofyan, two volunteers with
the People's Crisis Centre, on 7 November 2000. Reportedly arrested by the Police Mobile
Brigade, the two individuals were said to be detained without charge and to be at risk of torture.
73. On 13 November 2000, the Special Representative transmitted ajoint urgent appeal with
the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning Aguswandi,
an Acehnese human rights defender working for the Congress for Victims of Human Rights
Violations, who has allegedly been subjected to death threats. According to the information
received, members of the Police Mobile Brigade went to the office of a legal aid group on
3 November 2000 asking about Aguswandi's whereabouts. On the following day, Aguswandi
reportedly managed to escape armed individuals in civilian clothes who were looking for him.
74. On 22 November 2000, the Special Representative, together with the Special Rapporteur
on extrajudicial, summary or arbitrary executions, the Special Rapporteur on torture, the
Chairman-Rapporteur of the Working Group on Arbitrary Detention and the Special Rapporteur
on violence against women, transmitted a communication to the Government of Indonesia
expressing her deep concern with regard to massive human rights violations occurring in the
province of Aceh. Concerns were expressed with regard to a pattern of serious human rights
violations targeting human rights defenders and conditions affecting the work of human rights
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defenders making them vulnerable to, in particular, extrajudicial execution, acts of torture,
including sexual violence, committed by the military and security forces; and numerous
detentions without arrest warrants.
75. In this regard, ajoint press release was issued on 22 November 2000 outlining the human
rights violations against human rights defenders set out above. The Special Representative,
together with the Special Rapporteur on extrajudicial, summary or arbitrary executions, the
Special Rapporteur on torture, the Chairman-Rapporteur of the Working Group on Arbitrary
Detention and the Special Rapporteur on violence against women, appealed to the Government
of Indonesia to provide information regarding the reports of abuses and to ensure the right to life,
the right to physical and mental integrity and the right to be free from arbitrary arrest and
detention of the population of Aceh.
Observations
76. The Special Representative has not yet received a response from the Government.
Iran (Islamic Republic of)
Communication sent
77. On 7 November 2000, the Special Representative sent a communication requesting
information about the sentencing on 27 September 2000 of Ms. Chirin Ebadi and
Mr. Mohsem Rahami, two lawyers and human rights defenders, by the Court of Tehran. Both
individuals were reportedly sentenced to a 15-month suspended sentence of imprisonment and a
five-year revocation of their civil rights, including the practice of law. It has been reported that
the trial was conducted without regard to the international standards for a fair trial.
Observations
78. The Special Representative awaits a reply from the Government.
Malaysia
Communication sent
79. The Special Representative transmitted a communication to the Government of Malaysia
on 7 November 2000 regarding the trial of Irene Fernandez, a human rights activist and director
of the Malaysian human rights organization Tenaganita. According to the information received,
she has been charged with publishing “false news” in connection with a report published in 1995
in which she described grave violations against migrant workers in government detention camps.
It has been reported that the trial of Ms. Fernandez was characterized by numerous irregularities,
notably postponements, recesses and adjournments which make it the longest running criminal
prosecution in Malaysia.
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Observations
80. The Special Representative has not yet received a reply from the Government.
Tunisia
Communications sent
81. On 15 November 2000, the Special Representative sent an urgent appeal concerning
Dr. Moncef Marzouki, spokesperson for the National Committee for Freedom in Tunisia.
According to the information received, Dr. Marzouki had been called before a judge
on 23 October 2000 and charged with belonging to a non-recognized organization, with
defamation, and with propagating false news, allegedly in connection with a written
contribution which he made to the Congress of Arab Human Rights Defenders in early
October 2000. It has been reported that he faces up to 20 years' imprisonment. Moreover,
Dr. Marzouki learned on 20 October 2000 that he is prohibited from leaving the country, a
month after he was dismissed from his job as a professor of medicine at the University of
Sousse.
82. On 29 November 2000, the Special Representative sent an urgent appeal to the
Government of Tunisia to express her concern over the suspension of the new executive of the
Tunisian League for Human Rights. According to the source, on 27 November 2000 a Tunis
court suspended the League's activities following a complaint by four members, known to be
close to the authorities, that elections to the organization's governing body at the end of October
had been unfair. It was also reported that the Tunisian authorities were watching the League's
offices and that the members, employees and individuals working with the League could be
arrested and charged for their activities with this organization.
Observations
83. No reply from the Government has been received so far.
United Kingdom of Great Britain and Northern Ireland
84. The Special Representative has received recent allegations from various sources
regarding the situation of human rights defenders in Northern Ireland. Concerns have been
raised regarding the continued lack of an independent public inquiry into the murder of lawyer
Patrick Finucane in 1989 and regarding the investigation into the assassination of solicitor
Rosemary Nelson on 15 March 1999. The Special Representative acknowledges the work done
in this area by the Special Rapporteur on the independence of judges and lawyers and the
Special Rapporteur on freedom of opinion and expression. She would encourage the
Government of the United Kingdom of Great Britain and Northern Ireland to implement the
recommendations made on these issues by the two mechanisms of the Commission on Human
Rights.
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V. CONCLUDING REMARKS
85. Significant advances have been made in recent years in creating or strengthening legal
and normative frameworks for the protection of human rights defenders in many parts of the
world. However, one recurrent problem remains the lack or inefficient implementation of these
norms in practice. The Special Representative is particularly eager to develop strong working
relationship with mechanisms established at the national or subregional level with a view to
promoting and protecting human rights. Similarly, she will seek to study the legislation and
jurisprudence of Member States with a view to defining, in a progressive manner, a set of “good
experiences or practices” which she will share with governmental or non-governmental partners.
Lastly, she will also seek innovative forms of cooperation in promoting the rights of human
rights defenders, including in the area of dissemination of information and awareness-building.
86. The Special Representative is deeply concerned at the considerable number of
communications she has already received that allege serious violations targeting human rights
defenders throughout the world. In particular, the Special Representative is concerned that a
variety of repressive trends, measures and practices persist which threaten the freedom of action
of human rights defenders. No region is free of these trends. While the sources of support for
human rights defenders have been slow to emerge, the quarters from which the threats emanate
are growing fast. The failure of States to offer effective guarantees against the violation of
fundamental rights has given a more critical dimension to issues of human security. Disparities
in economic, social and political empowerment emphasize the need for groups and individuals
who strive to facilitate the exercise of rights by others. It is an unfortunate reality that the role of
human rights defenders is not recognized or accepted by Governments in many parts of the
world. State apparatus, oppressive laws and other tools of repression continue to be used against
defenders in attempts to deter them from the valuable work they contribute to the promotion of
human rights.
87. Reports submitted by some of the special procedures mechanisms at the fifty-fifth and
fifty-sixth sessions of the Commission on Human Rights indicated the serious nature of the risks
faced by human rights defenders. The Special Representative wishes to recall cases brought to
the attention of the Commission in order to emphasize the need for strong and effective measures
for the protection of defenders. These reports also brought to light trends and practices being
used to affect adversely the promotion of human rights.
88. The Working Group on Arbitrary Detention reported cases of 15 human rights defenders
from eight countries (see E/CN.4/1999/63 and Add.1; E/CN.4/2000/4 and Add.1 and 2). The
Special Rapporteur on the independence ofjudges and lawyers expressed concern at information
received in 34 cases from 16 countries regarding the violation of rights to which human rights
defenders were being subjected (see E/CN.4/1999/60; E/CN.4/2000/61 and Add.1). The Special
Rapporteur on freedom of opinion and expression expressed concern regarding the cases of
18 defenders in 8 countries (see E/CN.4/1999/64; E/CN.4/2000/63 and Add.1, 3 and 4). Reports
of the Working Group on Enforced or Involuntary Disappearances contained information on
cases of 13 defenders in 7 countries (see E/CN.4/1999/62 and Add. 1 and 2; E/CN.4/2000/64).
The Special Rapporteur on extrajudicial, summary and arbitrary executions reported on violence
and threats of violence faced by 21 human rights defenders in 11 countries (see E/CN.4/1999/39
and Add.1; E/CN.4/2000/3 and Add.2 and 3). The Special Rapporteur on torture reported on
E/CN.4/200 1/94
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cases of6l defenders from 21 countries (see E/CN.4/1999/61 and Add.1; E/CN.4/2000/9 and
Add. 1 and 4). These were cases that these special procedures could take up within their
mandates. There are several more who are not covered by these mandates and who are
consistently being subjected to oppressive practices which have serious consequences that
diminish prospects for the promotion and protection of human rights in many parts of the world.
89. The measure of success of the work of the Special Representative would be the degree of
security that this mechanism can instil in those acting for the promotion and protection of human
rights. To achieve the purpose for which the mandate has been established the Special
Representative considers the following as requiring her special attention:
(a) The activities of armed groups, sponsored by the State or acting independently, as
well as those of military, paramilitary or other security groups, have become a major threat to the
exercise of human rights and fundamental freedoms. These groups pose a major threat to the
security of human rights defenders and are directly or indirectly undermining orjeopardizing
their work. This well-known factor will need specific consideration within the framework of this
particular mandate. The experience gained by other special procedures, by treaty bodies or by
OHCHR field presences (see E/CN.4/2000/1 1) will be of great assistance in identifying the main
issues to be dealt with, the objectives which the Special Representative may reasonably wish to
achieve and the specific strategies which would have to be developed to reach them;
(b) As mentioned above, the rights to freedom of association, assembly and
movement are not specifically covered by any particular thematic mandate. It is urgent to
undertake a comprehensive review of the implementation of the Declaration in this area and
dwell in an appropriate manner on the investigation of individual cases;
(c) One of the main characteristics of the Declaration is to address defenders as a
group or as individuals with specific rights and freedoms. It is important to study the repressive
measures faced by the defenders as groups, as well as the risks they face as individuals active in
the promotion and protection of civil, cultural, economic, political and social rights;
(d) The Special Representative intends to pay particular attention to devising
appropriate strategies for the implementation of the Declaration's provisions relating to the
protection of human rights activists seeking democratic transformation and reacting against or
opposing, through peaceful means, acts resulting in violation of human rights; 8
(e) Human rights defenders may be targeted in many different ways, including by the
enactment of laws criminalizing certain aspects of human rights activity, or for exercising their
freedoms of association, assembly, information and movement. Regulatory frameworks may be
imposed to limit their freedom of association or restricting the scope of activities by
non-governmental organizations. This structural threat to the activities of human rights
defenders will need specific attention in the work of the Special Representative and, accordingly,
she will coordinate and compile any such legislation or regulatory framework with a view to
drawing lessons from them and formulating appropriate recommendations to overcome their
negative consequences insofar as the enjoyment of the rights set forth in the Declaration is
concerned;
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(f) The situation of human rights defenders subjected to prosecution and judicial
investigation under such laws and their sentencing after unfair trials will be a matter of serious
concern for the Special Representative. It will be of particular importance to determine what
measures or steps should be contemplated by the Special Representative in cooperation with
Member States with a view to looking into the matter, drawing specific conclusions and
recommending remedial measures to the concerned authorities, including forms of
compensation;
(g) Greater risks are faced by defenders of the rights of certain groups as their work
challenges social structures, traditional practices and interpretations of religious precepts that
may have been used over long periods of time to condone and justify violation of the human
rights of members of such groups. Of special importance will be women's human rights groups
and those who are active on issues of sexuality, especially sexual orientation and reproductive
rights. These groups are often very vulnerable to prejudice, to marginalization and to public
repudiation, not only by State forces but by other social actors. The Special Representative will
undertake or encourage studies of any such phenomena with a view to drawing up a
compendium of possible measures to enhance the protection of such human rights defenders;
(h) As was made clear in the context of the adoption of the Declaration and the
setting-up of this mandate, reprisals and repressive measures may be taken against individuals
and groups who have reported alleged human rights abuse to international bodies, including the
United Nations human rights mechanisms. It is the intention of the Special Representative to
explore such matters further since occurrences of such violations are detrimental to the activities
of procedures which are at the core of the United Nations human rights mechanisms;
(i) Lastly, the Special Representative will pay attention to the long-standing issue of
states of emergency and the ensuing occurrence of impunity insofar as they affect the activities
of human rights defenders. In several countries, appropriate human rights legislation may have
been enacted long ago without being properly implemented because of an almost continuous
state of emergency. The extent to which such legislation may be of relevance in the
consideration of the rights of human rights defenders will need to be examined with attention.
90. The Special Representative is of the view that effective implementation of the mandate
depends upon the availability of adequate human and material resources. The mandate, as
created by the Commission on Human Rights, does not have financial implications which
presupposes that it relies on extrabudgetary funds. Without appropriate resources, the
expectations raised by this mandate will not be satisfied and it will be difficult for the Special
Representative to carry out her work thoroughly and with the necessary degree of efficiency.
91. The Special Representative is required by the mandate to recommend effective strategies
to better protect human rights defenders and to follow up these recommendations. Appraisals,
situational analyses and research are necessary for this purpose. Areas for this activity have been
identified, and the Special Representative shall make every effort to complete the initial studies
and present her recommendations to the Commission and the General Assembly in her
subsequent reports.
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Notes
1 See reports of the Secretary-General to the Commission on Human Rights (E/CN.4/2000/95)
and to the General Assembly (AI55/292) submitted pursuant to Commission resolution 1999/66
and General Assembly resolution 54/170, respectively.
2 “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.”
“ The General Assembly ... 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 the
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.”
‘ “1. In the exercise of human rights and fundamental freedoms, including the promotion and
protection of human rights as referred to in the present 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 the violation of those 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 :
“(a) To complain about the policies and actions of individual officials and
governmental bodies with regard to violations of human rights and fundamental freedoms, by
petition or other appropriate means, to competent domestic judicial, administrative or legislative
authorities or any other competent authority provided for by the legal system of the State, which
should render their decision on the complaint without undue delay;
“(b) To attend public hearings, proceedings and trials so as to form an opinion on their
compliance with national law and applicable international obligations and commitments;
“(c) To offer and provide professionally qualified legal assistance or other relevant
advice and assistance in defending human rights and fundamental freedoms.”
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In this regard, reference is made to the final report of the independent expert,
Mr. M. Cherif Bassiouni, submitted in accordance with Commission resolution 1999/33 on the
right to restitution, compensation and rehabilitation for victims of gross violations of human
rights and fundamental freedoms (E/CN.4/2000/62) and its annex, entitled “Basic principles and
guidelines on the right of victims to a remedy and reparation for victims of violations of
international human rights and humanitarian law”.
6 In particular, in the course of examining States parties' human rights situations, treaty bodies
have placed emphasis on the fact that intimidation and oppression of human rights defenders
might give rise to impunity for the perpetrators of human rights violations. In the concluding
observations adopted following its examination of one report, the Human Rights Committee
underlined, for instance, that the repeated instances of intimidation ofjudges, prosecutors,
witnesses, victims and their relatives, human rights activists and journalists largely accounted for
the absence of decisive action by the bodies that should investigate and try crimes and for the
continuance of impunity. On another occasion, it also pointed out that members of various social
sectors, particularly members of the judiciary, lawyers, journalists, human rights activists,
members of trade unions and members of political parties, were subject to intimidation, death
threats and even murder, thus facing serious obstacles in the legitimate performance of their
duties. The Committee deplored that effective measures had not yet been taken to prevent the
recurrence of such acts. It went on to urge the Government concerned to take all necessary steps,
including protective and pre-emptive measures, to ensure that members of various social sectors,
particularly members of the judiciary, lawyers, journalists, human rights activists, members of
trade unions and members of political parties, were enabled to perform their duties without
intimidation of any sort. With respect to article 22 of the Covenant, the Committee also had the
opportunity to express its concern about the difficulties arising from the registration procedures
to which non-governmental organizations and trade unions were subjected. The Committee also
expressed concern about reports of cases of intimidation and harassment of human rights
activists by the authorities, including their arrest and the closure of the offices of certain
non-governmental organizations. In that regard, the Committee, reiterating that the free
functioning of non-governmental organizations was essential for the protection of human rights
and the dissemination of information in regard to human rights among the people, recommended
that laws, regulations and administrative practices relating to their registration and activities be
reviewed without delay in order that their establishment and free operation might be facilitated in
accordance with article 22 of the Covenant.
Another instance of possible cooperation can be found in the procedure established by the
United Nations Educational, Scientific and Cultural Organization in accordance with
decision 3.3. adopted by the Executive Board at its one hundred and fourth session in 1978
through which the Committee on Conventions and Recommendations, a subsidiary body of the
organization's Executive Board, examines complaints concerning alleged violations of human
rights falling within UNESCO's fields of competence, namely education, science, culture and
information. The right to information, including freedom of opinion and expression (Universal
Declaration, art. 19), and the right to education are of particular relevance to the Special
Representative's effort to implement her mandate and victims of the violations of these two
categories of rights are often themselves human rights defenders, including researchers, writers,
journalists and intellectuals who seek to promote and protect human rights.
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8 See article 18 of the Declaration on Human Rights Defenders:
“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. Individuals, groups, institutions and non-governmental organizations also 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.”
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Annex 1*
NOTE VERBALE DATED 17 NOVEMBER 2000 FROM THE PERMANENT MISSION
OF CUBA TO THE UNITED NATIONS OFFICE AT GENEVA ADDRESSED TO THE
SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL
The Permanent Mission of the Republic of Cuba to the United Nations Office and
International Organizations with Headquarters in Switzerland presents its compliments to the
Special Representative of the Secretary-General on human rights defenders and, with reference
to its note 0/SO 214 (107), prepared in accordance with Commission on Human Rights
resolution 2000/6 1, has the honour to forward the comments of the Government of the Republic
of Cuba.
As you may know, the Government of Cuba opposed the proposal to appoint a Special
Representative of the Secretary-General on human rights defenders, because the countries
promoting the initiative upset a delicate balance reached after years of intense negotiations and
even disregarded the outcome of the consultations on the subject.
The Government of Cuba wishes to point out that the adoption by consensus of 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 was
possible only after many years of negotiation. Moreover, the process was not successful in
achieving all the proposed objectives. In the end, the issue of defining the responsibilities of
individuals and groups towards the societies in which their rights can be realized was never
settled.
When the Declaration was adopted by the General Assembly, an interpretative
declaration was drawn up on behalf of 26 delegations, including that of Cuba, and was circulated
as an official United Nations document (A153/679).
The Government of Cuba would like to reiterate some of the ideas contained in that
document:
1. Only the State can adopt legal, legislative and administrative guarantees to ensure that all
persons under its jurisdiction are able to enjoy those rights and freedoms.
2. The implementation of the Declaration and international cooperation in promoting that
objective should be in full conformity with the Charter of the United Nations, particularly with:
(a) Respect for the sovereignty of States and their territorial integrity;
(b) Non-interference in the internal affairs of States.
3. The rights and obligations stipulated in the Declaration should be exercised in full
conformity with domestic law, which is the juridical framework within which human rights and
fundamental freedoms should be implemented and enjoyed and within which all activities
referred to in the Declaration should be conducted.
* Reproduced in English and Spanish only.
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4. Recourse to international human rights mechanisms is a supplementary right that
presupposes that all domestic remedies have been exhausted.
5. Funding for activities to promote and protect human rights must comply fully with the
domestic law of the State concerned.
The above ideas are all still valid, particularly when the aim is clearly to exploit the
promotion and protection of human rights for the purpose of “legitimizing” intervention and
interference in the internal affairs of developing countries.
There are many reasons for Cuba's concern about the dominant trends taking shape in the
implementation of the Declaration, including:
1. There has been an attempt to use the term human rights “defenders” only when referring
to the implementation of the Declaration, to the exclusion of other important international human
rights instruments such as the Declaration on the Right to Development.
2. There has been an attempt to consider only individuals and non-governmental
organizations as belonging to the category of human rights defenders, to the exclusion of State
activities. According to this logic, there would appear to be no States that are defenders of
human rights. Peoples, as a social category, would also appear to be ineligible for inclusion in
the category of defenders, so that the peoples of the South who are working to realize their right
to development could apparently not be described as defenders.
3. Reflecting the bias of one group of countries with regard to the various categories of
human rights, the title of “defenders” is used almost exclusively where the activity relates to the
promotion and protection of civil and political rights.
The term “defenders” is not applied to those non-governmental organizations working to
defend the right to a healthy environment - they are merely “environmental organizations” and
the organizations defending the rights of indigenous peoples are just “indigenous organizations”.
4. Where developing countries are concerned, it is argued that defenders must, by
definition, be members of the political opposition to the Government, especially in cases where
the Government does not fit in with the major Western Powers' geopolitical control models.
Attempts are made to impose the view that no Government in the South really represents
the will of the people. Even then, non-governmental organizations whose work is in line with
governmental policies and programmes are accused of siding with the Government or simply of
being its agents.
It can nevertheless not be forgotten that the description applied by the Western media
monopolies to many genuine human rights defenders from the peoples of the South who were
forced to rebel against the military dictatorships imposed on them with the support of the major
world Power was not “human rights defenders”, but “Marxist rebels” or even “terrorists”.
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5. Some non-governmental organizations from the North working in the field of civil and
political rights can be seen to be claiming a monopoly on the worldwide representation of
so-called defenders, hindering access to international decision-making bodies by thousands of
grass-roots and local organizations from the countries of the South.
6. Outside funding for the activities of so-called human rights defenders still shows clear
patterns of selectivity and political manipulation and is sometimes a front for the funding of
activities that are incompatible with the Charter of the United Nations.
In the case of Cuba, the term “human rights defender” should be applied first and
foremost to the people as a whole: it is fighting for its right to life, development and
self-determination in the face of political genocide in the form of the hostility and embargo to
which it is subjected by the Government of the United States of America.
The United States Government, while cutting off the Cuban people from the resources it
needs to buy, such as food and medicine, has finally acknowledged publicly that it has used
federal funds to finance counter-revolutionary groups in Cuba.
Attempts are made to present these groups, which are set up, funded and controlled by
the United States Government and by the Miami-based mafia of Cuban origin, as human rights
defenders to try to create the impression that there is internal political opposition in Cuba and
thereby make it easier to “justify” their aggression against the Cuban people.
This criticism of the trends and dangers outlined above does not mean that the
Government of Cuba is unaware of the importance of protecting individuals and groups which
are being persecuted all over the world and even risking their lives for the cause of human rights.
The victims of summary and arbitrary executions, disappearances, arbitrary detention, all
forms of racism, racial discrimination, xenophobia, foreign occupation and domination, poverty,
hunger and other denials of economic, social and cultural rights, religious intolerance, terrorism
and discrimination against women, as well as all those fighting to eradicate those practices and to
promote a world where peace, justice and development are given priority, will have Cuba's full
respect and support.
Cuba was a fervent proponent of the idea that the follow-up to and implementation of the
Declaration should be carried out in a comprehensive and inclusive manner, in fulfilment of the
mandates of all the arrangements and procedures of the United Nations human rights
mechanisms and not through the creation of a new mechanism that could be politically
manipulated and used selectively and in a discriminatory fashion against the countries of the
South.
Now that the mechanism is in place, Cuba, despite its opposition, welcomes the fact that
the mandate has been entrusted to someone from the South and believes it has a duty to bring the
above points to her attention.
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Annex 11*
LETTER DATED 5 JANUARY 2001 FROM THE SPECIAL REPRESENTATIVE
OF THE SECRETARY-GENERAL TO THE PERMANENT REPRESENTATIVE
OF CUBA TO THE UNITED NATIONS OFFICE AT GENEVA
I would like to thank you for your comments in response to my note verbale dated
10 October 1999. I appreciate the openness with which you have expressed your Government's
position on the creation of the mechanism of the Special Representative of the Secretary-General
on human rights defenders. You have raised serious issues with regard to the implementation of
the mandate entrusted to me, and I welcome this opportunity to initiate a meaningful dialogue
between your Government and myself for a clearer understanding of the mandate.
I am happy to note that in some aspects we share a common understanding that could
help us to agree on the scope of the mandate. In my view the term “human rights defenders” is
not restricted only to those seeking protection and promotion of civil and political rights. 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
recognizes those striving for the promotion, protection and realization of social, economic and
cultural rights as human rights defenders. Therefore, those defending the right to a healthy
environment, or promoting the rights of indigenous peoples would, by no means, fall outside the
ambit of any definition of a human rights defender.
The Declaration reaffirms the importance of human rights instruments adopted within the
United Nations system (preambular paragraphs 2 and 6, articles 4, 14 and 18). There is,
therefore, no reason to assume that provisions of the Declaration on the Right to Development,
where relevant, would be excluded from consideration under this mandate.
You have mentioned the interpretative declaration drawn up on behalf of 26 delegations,
and have reiterated some of the ideas in that document. There can be no argument with the
position that only the State can adopt legal, legislative and administrative guarantees, in
conformity with international standards, to ensure that all persons under its jurisdiction are able
to enjoy those rights and freedoms. It is, however, a responsibility of the international
community to urge and persuade States to fulfil this important obligation, and to take note of
situations where enjoyment of these rights and freedoms are impeded by acts or omissions of the
State. In this context there can be no doubt about the legitimacy of international concern on
situations adversely affecting the enjoyment of human rights.
No doubt, issues of national sovereignty and territorial integrity could be a concern in
several aspects of international relations. However, it is difficult to understand how promotion
and protection of human rights, and concern regarding violation of these rights, infringe upon the
concept of State sovereignty or pose a threat to the territorial integrity of a State. It is,
* Reproduced in English and Spanish only.
E/CN. 4/2001/94
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nevertheless, true that the international community can promote and protect human rights only
by means that are transparent and based on respect for the aspirations of the people for whose
protection any concern is expressed. Special procedures of the United Nations human rights
system are created by Member States, and this aspect is carefully built into the working of the
mechanisms. Therefore, I see no cause for apprehension in this regard or for a lack of
confidence in the implementation of any of the mandates of these procedures.
On the other hand, it is disturbing that whenever attention is drawn to the conduct of any
State that amounts to violation of human rights, any expression of concern is rejected as
interference in the internal affairs of the State or an infringement of the sovereignty of the State.
The tendency of States to use such arguments in order to avoid accountability for human rights
abuse must be discouraged if effective modes of complying with human rights standards are to
be established within the United Nations system. I hope that Member States will jointly
endeavour to do so.
I am unable to agree with your interpretation of the juridical framework prescribed in the
Declaration for the implementation and enjoyment of human rights and fundamental freedoms.
While domestic law in conformity with the Charter of the United Nations constitutes the juridical
framework, it has to be read with article 4 of the Declaration. There is no scope for an
interpretation of these provisions which implies that recourse to international human rights
mechanisms is a supplementary right which presupposes that all domestic remedies have been
exhausted.
I am aware that the question of funding for activities for promotion and protection of
human rights has emerged as an issue of concern. Non-governmental organizations, particularly
those working for human rights, are increasingly being subjected to limitations that would affect
their capacity and outreach. International cooperation for the promotion of human rights implies
that both the State and civil society should have access to resources for this important activity.
Restrictions on receiving funds by human rights organizations have often been imposed as a
measure to impede their activities for the protection of human rights. States have often raised
this as an issue of national security, independence or sovereignty. Any apprehension in this
regard seems to be misplaced, simply because the nature of the activity must determine its
validity and genuineness. Promotion of human rights and fundamental freedoms of the people,
in whose name the State claims sovereignty, can hardly be seen as a threat to the State.
One of Cuba's concerns about the dominant trends taking shape in the implementation of
the Declaration is that States are excluded from being considered as “defenders”. Without going
into any lengthy arguments on the role of the State, I would like to draw your attention to
article 2 of the Declaration which places the prime responsibility and duty for the protection,
promotion and implementation of all human rights on the State, by offering effective guarantees
for enjoyment of these rights. In this context it would be more appropriate for the State to
consider itself as a “guarantor” of rights and to take all possible measures to fulfil this obligation.
As I do not see some of the dangers and trends you perceive and criticize as relevant to
my mandate, no useful purpose may be served by any mandate on my part to respond to these.
I may, however, state that this is a mandate for the protection of the right, individually and in
association with others, to promote, protect and strive for the realization of human rights and
E/CN.4/200 1/94
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fundamental freedoms at the national and international levels (article 1 of the Declaration and
General Assembly resolution 53/144). It will be used for the protection of defenders wherever
the situation so demands. The mandate is concerned with the elimination of oppressive trends
and practices and seeks to mitigate any threats to those striving for the implementation of human
rights. It would not be fair to presume its implementation to be biased against or in favour of
any region.
Cuba's recognition of the importance of protecting individuals and groups who strive for
the cause of human rights despite the persecution and grave risks they face is appreciable. I am
greatly encouraged by your Government's assurance of full respect and support for victims of
human rights violations, as well as for those who strive for the eradication of such practices.
Cuba's support and respect, founded on the recognition that activities for the elimination of
human rights violations will lead to a world order where peace, justice and development are
given priority, gives me greater hope that Cuba will be able to overcome its reservations on the
setting-up of this mechanism.
Let me assure you, Excellency, of my keenness to continue a constructive discussion on
these issues.
