THE DECLARATION OF HUMAN RIGHTS DEFENDERS

• A diplomatic breakthrough for the 50th anniversary of the Universal Declaration of Human Rights
• Conclusion: Can the Declaration help fortify the human rights movement?

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THE DECLARATION OF HUMAN RIGHTS DEFENDERS

Civil society has joined governments in playing a crucial role in spreading the message contained in the UDHR around the world. The dramatic growth of civil society in recent years has been welcomed by those who view it as an encouraging sign for the advancement of human rights, but greeted with suspicion by those who view it as a threat to sovereignty, national security and governmental power. Individuals, groups and organizations from civil society who defend and promote human rights often suffer repercussions for delivering their powerful message. They frequently put themselves in harms way to protect the rights of others and are on the scene of armed conflict before other actors from the international community arrive, including the United Nations. The degree to which the rights of human rights defenders are respected within a given country can be seen as a good litmus test for the overall human rights situation within that country and the extent to which the government respects its international human rights commitments. According to the Secretary-General, "when the rights of human rights defenders are violated, all our rights are violated."

A diplomatic breakthrough for the 50th anniversary of the Universal Declaration of Human Rights

Thirteen years after the idea was first taken up, the General Assembly finally considered the draft declaration on the protection of human rights defenders at its 53^rd session. Coming during the anniversary year of the UDHR, the adoption of the declaration would serve as a special tribute to those who risk their freedom and lives in defense of the principles enshrined in the 50-year old document. The draft declaration states that everyone has the right to meet or assemble peacefully; to form, join and participate in non-governmental organizations; to seek and obtain information about human rights; to complain about the policies and actions of officials and government bodies; and to enjoy unhindered communication with international bodies. It obligates States to protect those who exercise those rights from violence, threats, retaliation, and discrimination.

Concern for the security of human rights advocates around the world — particularly those in Eastern European or „Helsinki countries" — prompted ECOSOC to establish a working group to draft a declaration on the subject in 1985. While Cold War politics were a primary force behind the initiative, they also impeded it from reaching fruition. As East-West tensions diminished in the early nineties, those involved with the working group expected a breakthrough in negotiations, but were disappointed to find that many Western governments — absent ideological motivations and aggravated by dissidents inside their own

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countries — had lost enthusiasm for the declaration. Growing North-South tensions also stymied the effort.

When Jan Helgesen, Special Adviser to Norway’s Ministry of Foreign Affairs, became Chair in 1993, he resolved to prevent unnecessary confrontations from occurring in the Working Group between NGOs and governments, and between representatives from the North and South. Emphasizing the technical nature of the body, he generally managed to discourage NGOs from using the Working Group as a forum for the airing of grievances against governments. Through skillful diplomacy Helgesen — a Northerner nominated as Chair by two Southern countries, Syria and Cuba — was also able to bridge the group’s geo-political divide. Working between sessions, Helgesen conducted formal negotiations with regional groups, traveled extensively to meet with human rights defenders in the field and lobbied governments over the telephone.

By the beginning of the Working Group’s February 1998 session, all but the four most difficult issues had been resolved. The first and most sensitive issue still pending related to the right of NGOs to be financed from abroad. When no text could be devised to satisfy both NGOs — which insisted that such a right be explicitly protected — and governments — one of which insisted that such a right explicitly be denied — all reference to overseas funding was dropped. The second contentious issue pertained to the framework of domestic law. A formulation was eventually agreed upon specifying that domestic law consistent with the international obligations of the State was the juridical framework within which the activities referred to in the declaration should be conducted. (?) The third lingering disagreement was over a clause proposed by governments that would have required human rights defenders to be loyal to their societies. While NGOs argued that the declaration was intended to address their rights, not their duties, the phrase "everyone has duties towards and within the community..." was eventually agreed upon. Finally, in reference to the right to observe trials, agreement was reached that everyone should have the right to attend "public" proceedings — a formulation allowing for some trials to be closed in the interest of the privacy and safety of those involved.

The declaration concerns rights already enshrined elsewhere — such as freedom of association and speech — but it is unique in its focus on non-governmental organizations. As governments are generally reluctant to expose and criticize the human rights records of other governments lest the action be reciprocated, NGOs have become the linchpins of the international human rights system. NGOs have been calling for a declaration recognizing the importance of their work and their rights for a long time. However, they have also been afraid that governments might use the opportunity to narrowly define what constitutes a human rights defender or to specifically enumerate which of their rights should be protected to the

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exclusion of others. Taken alone, the draft declaration which came before the 53^rd session of the General Assembly does not seem to be restrictive, but a recent resolution by the Sub-Commission of the Human Rights Commission on the same subject specifies that human rights defenders must be „genuinely involved in the field". Application of this vague and subjective definition may allow governments to deny that a wide range of actors are human rights defenders — including political opponents. Despite the Sub-Commission’s troubling resolution and flaws in the declaration itself, NGOs strongly support the declaration and its adoption by the General Assembly on the anniversary of the UDHR.

Conclusion: Can the Declaration help fortify the human rights movement?

1. Human rights defenders have helped to bring democracy and a greater respect for human rights to many parts of the world and to Latin America in particular. When Chile, under the dictatorship of General Pinochet, became the first country to be singled out for scrutiny by the UN’s Commission on Human Rights, human rights activists from inside and outside the country took many risks to provide the Commission with information on the atrocities taking place there. Almost every Latin American country experienced repressive military rule at some stage during the 1980s, yet the region’s human rights system has emerged as one of the strongest in the world, due in large part to the activism of the region’s human rights groups.

The spread of democracy to many parts of the world during the 1990s neither diminishes the importance of the role played by non-governmental actors in protecting and promoting human rights, nor ensures their safety. Many governments — even ostensibly democratic ones — continue to place obstacles in the way of human rights defenders, often in the name of national security. Paradoxically, while the success of the human rights and democratic movements has opened up more political space for human rights defenders, it has also produced a backlash against them. As their voices grow louder, human rights advocates are being censored, denied access to information, prevented from organizing, harassed, jailed, exiled, tortured and murdered.

The human rights defenders declaration aims to draw attention to and combat this trend. For the declaration to have a significant impact on the international level the Office of the High Commissioner for Human Rights needs to be given the mandate and resources for monitoring compliance. To be effective on the national level governments will also need to publicize the declaration widely and incorporate it into domestic law. Human rights defenders themselves will play a crucial role in monitoring the declaration on both the national and international levels, just as they have in monitoring compliance with human rights treaties.

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NGOs are already playing a fundamental role in enforcing human rights treaties nationally, in facilitating partnerships between governmental and intergovernmental organizations, in shifting the boundaries of non-intervention in the internal affairs of states, in making human rights an integral part of sustainable development, and in pressuring private business to respect and promote human rights. Yet, like the international system and the human rights movement, NGOs today are searching for their place in a world that is becoming simultaneously more connected and fragmented, and in a movement that is becoming more universal and decentralized. By formally recognizing their existence and their rights, the declaration on human rights defenders will help fortify the identity of NGOs, and thus strengthen the core identity of the human rights movement.