News

28 Jul

Individuals who submit individual complaints to UN human rights bodies are at risk of harassment and reprisals. Treaty Bodies and the Office of the UN High Commissioner for Human Rights must make use of all relevant resources to mitigate and counter those risks. 

28 Jul

Following a joint NGO letter, ECOSOC members call on the NGO Committee to fulfil its requirements and support NGO engagement with its procedures, including by meeting and hearing from civil society representatives.

28 Jul

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Time is pressing so let's go straight to the point: there is no other option for Cameroonian authorities than to promptly release human rights defenders Felix Agbor Balla, Dr Fontem Aforteka’a Neba and journalist Mancho Bibixy. That is, if Cameroon intends to live up to its international human rights commitments or at least show minimum regards to basic human rights standards. Because as we all know, arbitrary and lengthy detention of peaceful protesters is a major blow in the face of human rights. 

24 Jul

A joint NGO letter calls on ECOSOC members to ensure that its subsidiary body the NGO Committee supports NGO engagement and convenes at least one meeting with NGOs before each NGO Committee session.

26 Jun
Group photo of HRDAP17 participants

We look back at all that the 17 inspiring human rights defenders participating in our 2017 Human Rights Defenders Advocacy Programme achieved during their intense time in Geneva.

General Assembly extends intergovernmental process on treaty body strengthening

21.09.2012
 

In the final hours of the 66th session of the General Assembly on 17 September 2012, Member States adopted a consensus resolution extending the intergovernmental process of the General Assembly on strengthening and enhancing the effective functioning of the human rights treaty body system (66/295).

The intergovernmental process began with General Assembly resolution 66/254 on 23 February 2012. That Russian-led resolution and the intergovernmental process it created were marred with controversy and 66 States abstained from the vote. Click here for an earlier ISHR news story on the adoption of that resolution.

Part of the controversy stemmed from the fact that the intergovernmental process began as the OHCHR-initiated ‘Dublin process’ on treaty body strengthening was still ongoing. The Dublin process involved a series of multi-stakeholder consultations since late 2009 and was to culminate in a report by the UN High Commissioner on Human Rights in early 2012. The report, which was to provide a basis for decisions by all stakeholders on which proposals to implement and how, was delayed to allow for further consultations with States.[1] In the meantime, the intergovernmental process was launched, leaving its relationship with the Dublin process and the High Commissioner’s report unclear. Ultimately the High Commissioner’s report was released at the end of June, following which the co-facilitators of the intergovernmental process (Iceland and Indonesia) held consultations with States on 2 July and again from 16-18 July 2012.

The July 2012 consultations

While States continued to argue about the relevance of the High Commissioner’s report,[2] the co-facilitators of the intergovernmental process essentially used it as the basis for drawing up a list of issues for discussion during the State consultations. The discussions amongst States covered four broad areas: the proposal for a comprehensive reporting calendar;[3] methods of work; the reporting process; and capacity to implement.

Several states supported the idea of a comprehensive reporting calendar in principle but voiced concerns that the proposed cycle of reporting would be unsustainable and very costly. A number of states also supported the High Commissioner’s suggestions to increase the visibility and accessibility of the treaty bodies through webcasting and videoconferencing.[4] Several NGOs, including ISHR, voiced their concerns with the suggestion in the High Commissioner’s report that formal sessions between treaty bodies and NGOs be public, as this would heighten the risk of reprisals against those cooperating with the treaty bodies. In that regard, many NGOs and States[5] welcomed the focus on reprisals in the High Commissioner’s report, in particular the suggestion to establish treaty body focal points on reprisals as a first step.

Several hard-lined States also put forward negative proposals. A group of States calling themselves “the cross-regional group” or “CRG”[6] presented a unified front in the consultations. Among other things, the CRG called for a code of conduct and accountability mechanism for treaty body experts, equitable geographical representation in the treaty bodies, and increased transparency of interaction between the treaty bodies and non-state stakeholders. Though States supportive of the independence and strengthening of the system were vocal in their opposition to such measures as a code of conduct, they were in general less coordinated in their response.

NGO participation

Another troubling aspect of the intergovernmental process from the start was the inadequate provision for the participation of key non-state stakeholders, in stark contrast to the broad consultations facilitated by OHCHR in the context of the Dublin process. Resolution 66/254 requested the President of the General Assembly (PGA) to work out “separate informal arrangements, after consultation with Member States” that would allow treaty bodies, NHRIs and “relevant” non-governmental organizations to provide input and expertise, “bearing in mind the intergovernmental nature of the process”. Several states who abstained from resolution 66/254 continued throughout the consultations to call for greater participation of other stakeholders.[7]

In the end, two NGO representatives were invited by the co-facilitators to participate in panels during the State consultations in mid-July[8] and NGOs were able to observe the discussions amongst States and take the floor during side events. Separate NGO consultations were also held on 4 September 2012. NGOs without ECOSOC accreditation[9] were subjected to a procedure whereby States could object anonymously to their participation without providing a reason or any recourse to the concerned NGO.[10] This was particularly controversial as language limiting participation to ECOSOC accredited NGOs was negotiated out of resolution 66/254 and NGO engagement with the treaty bodies has never been limited in such a way.[11] Alkarama, an NGO that regularly contributes to the work of the treaty bodies, was prohibited from participating because of an objection from Algeria. During the NGO consultations, USA, Canada, Switzerland, Israel and the EU challenged the ‘non-objection’ procedure, stating that there was no agreement on its use, while China, Russia and Algeria argued that the rule is well established for non-accredited NGOs in General Assembly proceedings.

Statements at the adoption of the resolution extending the intergovernmental process indicated that States were still divided on NGO participation. Russia on behalf of the CRG called for strict compliance with resolution 66/254 and the intergovernmental nature of the process while the USA stated that NGOs must continue to be included in all aspects of the discussion.

The way forward

The co-facilitators concluded their work in the 66th session with a non-substantive progress report to the PGA that describes the State and NGO consultations. In that report, the co-facilitators’ recommend that a comprehensive cost review of the treaty system be provided by the end of 2012.

Regarding the timeline, States were divided in the negotiations about whether the resolution should prescribe a fixed end to the process within the 67th session[12] or should not be constrained.[13] Reflecting the different State positions, the resolution rather vaguely “decides to extend the intergovernmental process … with a view to identifying” concrete and sustainable measures in the next session.

As the General Assembly is now gearing up for its intense Committee work during the autumn, the intergovernmental process has been put on hold until early 2013. In the meantime, the Third Committee of the General Assembly will be confronted by requests from several treaty bodies for temporary additional funding to deal with their backlogs. Language to the effect that the continuation of the intergovernmental process would not prejudice such temporary measures was negotiated out of the resolution, leaving the prospects for those requests uncertain.

 


[1] OHCHR held consultations with States in New York on 2 and 3 April in an effort to satisfy those that that felt States had not been sufficiently consulted in the Dublin process.

[2] In particular, hard-lined States responsible for creating the intergovernmental process argued that the High Commissioner’s report should be just one aspect of the basis for discussions.

[3] This proposal would organize the current reporting deadlines into a single comprehensive reporting calendar, based on a periodic five-year cycle. Within this five-year period, there would be a maximum of two reports per annum due for a State that is a party to all the treaties.

[4] Canada, Costa Rica, Ireland, El Salvador, Japan, Korea, Mexico, Thailand, Switzerland, USA, Liechtenstein, Colombia, the African group and CARICOM. States in the CRG were supportive of webcasting and videoconferencing only with the consent of the State Party concerned and suggested that all meetings, including those with non-state stakeholders be webcasted.

[5] Including the EU, Australia, Israel, USA, Thailand, and the African group.

[6] Belarus, Russia, Bolivia, China, Cuba, Iran, Nicaragua, Cuba, Pakistan, Syria, and Venezuela.

[7] Including Switzerland, USA, Mexico, Liechtenstein, Costa Rica, and El Salvador, Canada, the EU, New Zealand, Australia.

[8] ISHR participated in a side event on “The role of the UN system and civil society in supporting Member States and their capacity to implement” and Amnesty International participated in a panel discussion on the “Capacity to Implement”.

[9] ECOSOC status provides NGOs with access to a range of fora at the UN and is granted by ECOSOC on the recommendation of the Committee on NGOs. The Committee has come under criticism in recent years as the Committee is known for excessive politicization and the balance of the Committee’s membership tends towards States that do not support a vibrant civil society at the UN. Click here for an earlier ISHR article about the ECOSOC NGO Committee.

[10] This procedure, whereby decisions to allow NGOs to participate are taken on a ‘non-objection’ basis has become prevalent in a range of meetings at UN headquarters in recent years.

[11] This also resulted in the co-facilitators having to reschedule the meeting from its original date on 31 July because the three working days’ notice they provided was insufficient for Member States to ‘vet’ the non-ECOSOC accredited NGOs wanting to participate.

[12] Including Liechtenstein, Switzerland, Canada, EU, New Zealand, USA, Australia, South Africa.

[13] Including China, the African group, Russia on behalf of the CRG, the Philippines.

 

ISHR concerned by exclusion of NGOs in civil society hearing

17.07.2013
 

(New York -17 July 2013) In a move contributing to the shrinking space for civil society at the international level, three non-governmental organizations (NGOs) were barred from participating in an important civil society hearing that was organised as part of the lead up to a United Nations (UN) high-level conference on migration and development. The three NGOs, the Center for International Migration and Integration,[1] Microfy,[2] and the Institute for Human Rights and Business Limited,[3] were excluded from the meeting as a result of one or more member States objecting to their participation.

ISHR calls on General Assembly to protect right to open engagement with UN

19.07.2013

(New York - 18 July 2013) The President of the General Assembly, Mr. Vuk Jeremić, should use his office to help protect the right of independent civil society to engage openly and without restrictions in United Nations (UN) spaces, a group of leading international and regional human rights organizations, including the International Service for Human Rights, said today.

In a letter to Mr. Jeremić, the International Service for Human Rights and additional signees, address a number of key issues regarding civil society participation in the UN that Mr Jeremić needs to confront during his remaining term in office.

In particular, the group of NGOs recognize the instrumental role that the President of the General Assembly can play in ensuring that the selection of civil society is carried out in a way that is in keeping with UN values and the principle of procedural fairness. In this regard, Mr. Jeremić is encouraged to show leadership by facilitating a more open and transparent accreditation process for civil society in high-level conferences and meetings of the General Assembly.

Michelle Evans,  m.evans@ishr.ch is ISHR's New York Manager and Advocacy Coordinator, contact her on +1 212.490.2199

States must not weaken the UN’s human rights bodies

08.08.2013

(New York, 7 August 2013) – The UN General Assembly must not undermine the work of the UN’s human rights treaty bodies, the International Service for Human Rights (ISHR) and Amnesty International said today.

Since April 2012, States in New York have been participating in an intergovernmental process established under the guise of strengthening the UN’s human rights treaty bodies. The UN treaty bodies are independent, expert committees mandated to review and promote States’ compliance with international human rights treaties. The discussions in the General Assembly are now reaching a critical juncture as states must decide whether to extend the process, potentially into 2014, or accept a package of proposals now.

However, as ISHR’s Madeleine Sinclair points out, the process is far from achieving its stated goal. ‘Despite the fact that the treaty body system is facing very real and grave challenges, the process has been marked by the efforts of some States to attack and weaken these bodies.’

Those challenges include a failure by some States to prepare reports on how they are implementing their treaty obligations – in some cases these reports have been outstanding for decades; a failure to implement the recommendations of the treaty bodies; the election of treaty body members who are neither independent nor expert; and a chronic lack of funding.

In April 2012 NGOs identified seven issues for the General Assembly to address, including how to ensure good expert membership and adequate resources for the system, and how to implement more effectively the recommendations made by the treaty bodies. 

Amnesty International’s Jose-Luis Diaz expressed his disappointment with how these issues have been handled. ‘On each of these issues, without exception, States have missed the opportunity to make improvements. Their lack of ambition and in some cases deliberate obstruction has resulted in a process that threatens to achieve very little if indeed it does not seriously undermine the treaty bodies.’

Amongst some of the damaging proposals made during the process, one has been a ‘Code of Conduct’ for treaty body members, which would seriously damage the ability of the experts to carry out their work in an objective and impartial way.

Mr Diaz stated, ‘We strongly reject these initiatives. Not only do they threaten the independence of the treaty bodies but they also distract from the real issue at hand; namely improving the human rights situation on the ground.’

ISHR’s Ms Sinclair also expressed disappointment that the process has not been the open, inclusive and transparent one that was promised at its creation. ‘Far from being meaningful and effective, opportunities for NGO participation have been characterised throughout this process by unpredictability, disregard for our expertise, views and potential contributions, and above all a fundamental lack of commitment and initiative to include NGO stakeholders outside of New York and Geneva.’

‘States must refocus their efforts on the core goals of this process’, urged Mr Diaz, ‘That is, how can they, through this process, increase the protection and promotion of human rights on the ground.’

Background

Nearly four years have passed since a group of current and former Treaty Body experts adopted the ‘Dublin Statement’, catalysing the most recent attempt to strengthen the UN human rights treaty body system that would eventually become known as the Dublin Process. But before that process—which involved some 20 consultations with different stakeholders—could run its course, a group of States led by Russia decided 18 months ago that the issues were properly left to States to address and initiated the ‘Intergovernmental process of the General Assembly on strengthening and enhancing the effective functioning of the human rights treaty body system’ (the Intergovernmental process).

Armed with the wealth of ideas, views, suggestions and emerging consensus of the Dublin Process, a divided General Assembly initially spent much time debating its role in treaty body strengthening, given its lack of legal competence to decide matters properly left to States parties to the treaties and the treaty bodies themselves. The result was an agreement by States, implicit in some cases, that while the GA may not be able to decide certain matters, it could recommend that certain actions beyond its competence be taken by relevant stakeholders.

Download the full statement here.

Contacts
Heather Collister, Treaty Body Advocacy Coordinator, ISHR Geneva, h.collister@ishr.ch, +41 79 920 38 05.
Jose-Luis Diaz, Representative and Head of Amnesty International’s Representative office to the United Nations in New York, JoseLuis.Diaz@amnesty.org , +1-212-867-8878

Background information

01.01.2008
 

What are the treaty bodies?

The treaty bodies are international committees of independent experts who monitor State parties’ implementation of each of the seven core human rights treaties and their optional protocols. The implementation of each of the international treaties is monitored by its own committee. At present, there are eight treaty bodies/committees monitoring the implementation of the seven core international human rights conventions. They are:

  • The Committee against Torture (CAT) and the Sub-Committee on the Prevention of Torture (SPT)
  • The Committee on the Elimination of Discrimination against Women (CEDAW)
  • The Committee on the Elimination of Racial Discrimination (CERD)
  • The Committee on Economic, Social and Cultural Rights (CESCR)
  • The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW)
  • The Committee on the Rights of the Child (CRC)
  • The Human Rights Committee (HRC)

For further information on each of the bodies, please click on the respective links on the left.

Consideration of reports by treaty bodies

When States become party to one of the international human rights treaties, they are obliged to submit an initial, followed by periodic reports to the treaty body in question. The main purpose of the periodic reports is to examine the extent of the compliance of States with their obligations under the treaties, and how these obligations have been translated into the domestic legal provisions of the particular State. Ideally, the preparation of the report should also serve as a means by which countries can assess and debate particular human rights issues in their own countries, and identify problems and areas that may require further attention. One of the primary ways through which treaty bodies monitor implementation of their respective treaty by State parties is through the consideration of these State party reports.

Further reading

ISHR monitors and reports on the Committees' examination of State reports. Please see the Treaty Body Monitor in the Publications section to access the reports.

For a comprehensive guide to the treaty bodies, see ISHR Simple Guide to the UN Treaty Bodies.

OHCHR has also produced a Handbook for NGOs that contains an instructive chapter on how to engage with the treaty bodies.

For more information, see also OHCHR.

Treaty Body Monitor

06.12.2007
 

Treaty Body Monitor: change in reporting

Focus on ‘concluding observations’

Beginning in March 2009, ISHR changed the format of its treaty body reporting.  Concluding its narrative thematic summaries of the examination of States before the treaty bodies, reports will now focus on a number of concluding observations for each State examined, and will provide an assessment of how these were addressed in the examination, including the initial views of the State, questions, comments and responses provided. Each report will address 4-5 concluding observations on the basis of time that the Committee dedicated to the issue, whether they requested follow-up on implementation, and whether the final recommendation was specific and implementable within a certain timeframe. 

A tool for advocacy

The purpose of this approach is to assist national NGOs and NHRIs in seeing how the Committees arrived at their recommendations and to be aware of the views that the State has already expressed. It is hoped that this will serve as an additional advocacy tool for pursuing implementation of these recommendations at the national level.

A smaller selection of States

In addition, ISHR will no longer report on all States being examined by the treaty bodies. Instead, it will report on certain countries on the basis of a number of criteria, including those where NGOs and NHRIs have already submitted information to the Committees and may find the new ISHR reports useful. Those States not reported on in the Treaty Body Monitor will be summarised in ISHR’s 2009 Human Rights Monitor. ISHR will continue to monitor all treaty bodies with the exception of the Committee on the Rights of Child, whose examinations are fully reported by the NGO Group for the Convention on the Rights of the Child.

In this section you will also find information related to the drafting of general comments, themtaic discussions and discussions related to the working methods of the treaty bodies.

Simply choose the treaty body you are interested in and then either:

  • Browse by country, to find the reports on the examination of a given country by the treaty body you have selected, or
  • Browse by session, to find the reports related to a given session of the treaty body you have selected

Joint NGO submission on treaty body reform

06.12.2010
 

Twenty NGOs, including ISHR, have recently presented their views and recommendations for strengthening of the treaty bodies. The joint NGO submission was developed in response to and released on the one year anniversary of the Dublin Statement on the Process of Strengthening the United Nations Human Rights Treaty Body System, which has been a catalyst for renewed reflection on how the treaty body system could be made more effective. While reform of the treaty bodies is an on-going process there is growing momentum for changes that could significantly enhance the functioning of the treaty bodies and contribute to improved human rights protection. The proposals put forward include recommendations to the treaty bodies themselves, the Office of the High Commissioner for Human Rights, and States. In recognition of the important role of civil society in the work of the treaty bodies and in any reform process, the submission also contains commitments by the undersigned organisations to engagement with the treaty bodies. To read the joint NGO response to the Dublin statement, click here.

For more information on treaty body reform and relevant documents, click here.

Call for endorsement of the Pretoria Statement on strengthening the treaty body system

22.07.2011
 

On 20 and 21 June 2011 the Centre for Human Rights at the Faculty of Law, University of Pretoria, hosted a civil society consultation on strengthening the UN treaty body system. The consultation was attended by eight national and regional NGOs[1] and facilitated by two international NGOs.[2] Also in attendance were members of OHCHR and the Chair of the Human Rights Committee, Ms Zonke Majodina.

This meeting was the latest in a series of consultations on reform of the treaty bodies. Previous consultations have resulted in the Dublin Statement and the Poznan Statement (both by current and former treaty body members acting in a personal capacity), the Marrakech Statement (by National Human Rights Institutions) , and the Seoul Statement (by mostly international NGOs). A group of mostly international NGOs also came together to produce the NGO response to the Dublin Statement.

The Pretoria Statement is an important addition to these documents, as it represents the views of regional and national level organisations. These groups are some of the most active in engaging with the treaty bodies, have the ground level knowledge to make effective and necessary contributions to the review of a State, and are the best placed to follow-up on the recommendations that come from the various committees. Their perspective on the process of reform of the treaty bodies is essential, but up until now it has been largely lacking, certainly in any focused form. The views of these NGOs, as represented in the Pretoria statement, must be taken forwards as an indispensable element of the discussions on reform as they continue throughout the course of this year. You can find more information on upcoming consultations here.

The strong backing of wider civil society for the Pretoria Statement and the perspective it represents would go some way towards ensuring that the voice of regional and national organisations cannot be ignored. To this end the statement has been opened for endorsement beyond the original group of drafters. Any organisation that wishes to endorse the statement can do so through the OHCHR site. Endorsements should be made by 15 August.

 

[1] Human Rights Law Centre, Australia; Centro de Estudios Legales y Sociales (CELS), Argentina; Human Rights Working Group, Indonesia; Foundation for Human Rights Initiative, Uganda; East and Horn of Africa Human Rights Defenders Project, Kenya; Community Law Centre, South Africa; Liga dos Direitos Humanos, Mozambique; Asian Legal Resource Centre, Hong Kong.

[2] Amnesty International and the International Service for Human Rights

 

Human Rights Committee adopts General Comment 34 on freedom of expression

10.08.2011
 

During its 102nd session in Geneva in July 2011, the Human Rights Committee (the Committee) adopted a new General Comment number34. The General Comment is on article 19 of the International Covenant on Civil and Political Rights (the Covenant) which covers freedom of opinion and expression. Mr Michael O’Flaherty was the rapporteur of this extensive General Comment, which replaces General Comment 10, the Committee’s previous interpretation of article 19.[1] For a full list of the general comments developed by the Committee see here. In three public meetings (19, 20, and 21 July 2011) the Committee completed the second reading of paragraphs 25 to 54 and adopted the amended version of General Comment 34. For previous reports on the Committee's discussions on the drafting of this General Comment, see here and here.

Two main issues persisted throughout the meetings. Firstly, there was a general concern about language in certain paragraphs, which would open loopholes for States to avoid their treaty obligations. For instance, a recurring issue was Japan’s proposal to change the word ‘must’ to ‘may’ throughout the General Comment. This was rejected by the Committee. Secondly, the fact that Committee members originate from many different legal cultures, occasionally posed a difficulty in reaching compromise and triggered lengthy discussions.

Many States, human rights organisations, and other actors provided input to the General Comment, amounting to a total of 350 submissions. Not all comments were considered during the public meetings, but many were discussed. The Committee evaluated the General Comment on a paragraph-by-paragraph basis and a number of paragraphs (24, 25, 28, 47-49)[2] triggered lengthy and contentious discussions. To make the negotiations flow more smoothly, the Committee opted to work with an implied consent approach.

An extensive discussion took place on the issue of the definition and meaning of the term ‘law’ (paragraph 24) reflecting the different legal backgrounds of the Committee members. The first reading of this paragraph had prompted heated debates around concerns to avoid giving the impression of imposing one system of law on other States. These debates continued at the second reading, in particular around the second sentence which read:  ‘“Law” in this regard may include statutory law [and where appropriate case law].’ The United States submitted a proposal to remove the whole second sentence, considering the meaning of ‘law’ to be evident. Conversely, Mr Lallah stressed that it is vital to have reference to statutory law in order to avoid condoning a judicial dictatorship in which all decisions are left to the courts. Eventually, the Committee agreed to the United States’ proposal. Mr O’Flaherty further suggested adding ‘enshrined in traditional, religious or other such customary law’ in the final sentence in order to clarify the meaning of ‘customary law’.

The Committee received two suggestions relating to the issue of the qualitative requirements for a norm to be considered ‘law’ (paragraph 25).  Firstly, the Committee agreed that the requirement that ‘it must be made public’, while accurate, was not very elegant and should be changed to ‘must be made accessible to the public’. Secondly, members agreed to add a final sentence to the end of the paragraph: ‘Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts of expression are not.’

Negotiations on paragraph 30, on treason laws and state secrets laws, led to a heated debate over the misuse of treason laws and other provisions relating to national security to impose restrictions on freedom of expression. The second sentence in particular, in which the Committee gives an example of what would not be permitted in this regard,[3] triggered many concerns from stakeholders that giving only this example was too limited. Mr O’Flaherty acknowledged the concern, noting that the Committee has a practice of fleshing out general statements with reference only to their own jurisprudence, which can give a misleading impression that this is all there is to be said on a matter. Eventually, the second sentence was changed to ‘[i]t is not compatible with paragraph three, for instance, to invoke such laws to suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated such information’.

The issue of whether defamation laws can carry penal sanctions (paragraph 47) was another source of robust debate. Some Committee members supported decriminalisation of defamation, while other members argued that criminalisation could be appropriate in certain cases, such as in the case of States or criminals owning newspapers and media outlets and using them to express defamatory speech and press forward their political agendas.

The Committee then continued with a lengthy debate about the controversial issue of blasphemy laws, an issue contained in paragraph 48. There was a clear divide on how to approach this topic with some members considering blasphemy laws to be inherently incompatible with article 19 and others insisting on their legitimacy. The divide and, at the same time, collaborative approach of the Committee was clearly illustrated with one member stating that ‘while he would like to ban blasphemy laws outright, he felt that this would not enjoy widespread support and would actually undermine the body of General Comments of the Committee’.[4]

Paragraph 49 and 52, relating to to historical events, specifically ’memory laws’ that penalise the promulgation of specific views about past events, were also extensively discussed. In paragraph 49, the Committee decided to delete reference to ‘memory laws’ and replace ‘past events’ with ‘historical facts’.[5] This was based mainly on Germany’s concern about the ambiguous reference of the term ‘past events’ to long term events such as World War II. This discussion continued in relation paragraph 52 where the Committee agreed to delete both sentences relating to ‘hate speech’;[6] Germany had raised concerns about the use of this term arguing that it lacked legal precision.

Overall, the general comment is a strong reaffirmation of the central importance for all human rights of the freedom of expression, and sets out narrow parameters within which the right can be restricted by states. Freedom of expression is crucial for the realisation of transparency and accountability, which again are essential for the protection of human rights. However, the discussion also demonstrated  how difficult it is to achieve this goal; for instance, the different legal and cultural backgrounds of the Committee members not only made the task of drafting the general comment a difficult one, but also demonstrated the need to take great care to formulate it in such a way that it will be interpreted correctly without becoming subject to misuse.


[1] General Comment 10 is four paragraphs long, while General Comment 34 is 52 paragraphs long, making it one of the longest general comments drafted by the Committee (only General Comment 32 on article 14: Right to equality before courts and tribunals and to a fair trial is longer at 62 paragraphs).

[2] Paragraph numbers refer to the adopted version of the text.

[3] The second sentence of paragraph 30 originally read, ‘It is not compatible with paragraph 3, for instance, to invoke treason laws to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated information of legitimate public interest’.

[4] Http://www.unog.ch/unog/website/news_media.nsf/(httpNewsByYear_en)/E4D729D3E6E0CCD5C12578D4004CF6C0?OpenDocument

[5] The original phrase, ‘Laws that penalise the promulgation of specific views about past events’, now reads, ‘Laws that penalise the expression of opinions about historical facts’.

[6] These sentences originally read, ‘The Committee is concerned with the many forms of “hate speech” that, although a matter of concern, do not meet the level of seriousness set out in article 20. It also takes account of the many other forms of discriminatory, derogatory and demeaning discourse.’

 

Human Rights Committee advance draft General Comment on freedom of expression

29.04.2011
 

During its 101st session in New York in March 2011, the Committee started its second reading of the draft general comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights (the Covenant), which covers freedom of opinion and expression. The first reading of the General Comment was concluded in October 2010. Mr. Michael O’Flaherty is the rapporteur of the extensive General Comment which will replace the earlier and more limited General Comment No. 10. In three public meetings (18, 23 and 24 March), the Committee held the second reading of paragraphs one through 24.

Following the Committee’s call for stakeholder comments by end of January 2011, many States, human rights organisations, academics and other actors provided input into the General Comment. In total, the Committee received 70 submissions.  All comments were considered, and many discussed by the Committee during the public meetings. Mr. O’Flaherty said that the level of interest among stakeholders was extremely high and that, overall, the commentators welcomed the new General Comment on freedom of opinion and expression.

The Committee evaluated the General Comment on a paragraph-by-paragraph basis, and a number of paragraphs triggered lengthy and contentious discussions. In the first section of the General Comment under the heading 'General remarks', the Committee decided to incorporate a paragraph 2bis as proposed by Mr. Gerald Neuman, including a reference to the enjoyment of the freedom of opinion and expression as a necessary condition for realizing the principles of, inter alia, transparency.

A lengthy discussion took place on the insertion of some articles containing guarantees for freedom of opinion and expression in paragraph three. Some Committee members contested the inclusion of article 17 (right of privacy) in the list, arguing that its relation to freedom of opinion and expression is unclear. At first the Committee deleted the reference to article 17 but later reinserted it on the basis that paragraph 19 makes a reference to article 17, and therefore the list in paragraph three would be incomplete without the reference. The proposal to include a reference to article 24 (right to nationality) did not find support, with Mr. Krister Thelin remarking that it would lead to the proposal of many more unrelated articles. Similarly, the Committee did not support other proposals which added references to economic, social and cultural rights on the basis that minimalist rather than expansive language was preferred.  The Committee included language stating that freedom of expression is integral to exercise the right to vote.

The Committee agreed to delete 'any form of discrimination' from the sentence 'No person may be subjected to any form of discrimination and impairment of any right…' in paragraph nine. Mr. Rafael Rivas Posada observed that the 'discrimination' and the 'impairment' of any right are two different issues, and that discrimination is already dealt with in another paragraph.

The Committee received a large number of comments containing proposals for the modification of paragraph 11. Firstly, the square brackets around 'commercial advertising' were removed, thereby including it as a protected form of freedom of expression. However, because the Committee did not consider commercial advertising to be on equal footing with the other levels of speech, they included the reference in a separate sentence: 'It may also include commercial advertising'. Accordingly, the footnote to the case Ballantyne v. Canada, Nos. 359/1989 and 385/1989 was removed because in that decision the protection of commercial advertising was considered equivalent to other means of expression.

Secondly, Mr. Neuman raised the importance of the right to receive information, especially in relation to political issues, and argued that this right should be treated equally to the right to express ideas. Therefore, a second sentence was added to paragraph 11: 'This right includes the expression and receipt of communications of every form of idea […].'

A third contentious issue related to the proposal by several NGOs to reference the right of expression of sexual orientation and gender identity. The experts were generally reluctant to include such a reference.  Sir Nigel Rodley voiced concern about the generic quality of the terms, while at the same time emphasising that the guarantee of expression covers sexual orientation and gender identity. As a compromise, Mr. O’Flaherty proposed including ‘forms of dress and other manners of expression of sexual orientation and gender identity’ in the list of means of expression in paragraph 12. However some Committee members, including Sir Rodley, Mr. Thelin, Mr. Ahmad Amin Fathalla and Ms. Christine Chanet, articulated their discomfort with referencing sexual orientation and gender identity, which led to just the addition of the phrase ‘forms of dress’ to paragraph 12. The Committee also decided to take out paragraph 13, since the freedom to express oneself in a language of one’s own choice was not considered central to the freedom of expression. 

Paragraph 15, though short, was also subject to heated debate. Most comments focussed on whether to strengthen the recommendation: specifically, whether ‘must’ should be replaced by ‘should’, and ‘encourage’ by ‘guarantee’. Ultimately it was agreed that the two sentences should be compressed into one, reading: 'As a means to protect the rights of media users, including members of ethnic and linguistic minorities, to receive a wide range of information and ideas, States parties should take particular care to encourage an independent and diverse media.'

Paragraph 16, on the independence of public broadcasting services, was the only fully bracketed paragraph in the draft General Comment. NGOs and many national human rights institutions (NHRIs) have urged the retention and even strengthening of the paragraph, but experts were divided on the matter. On the one hand, Ms. Iulia Motoc argued that paragraph 16 should be retained because a reference to media independence is fundamental given some practices of excessive state control in the global South. Mr. Thelin and  Ms. Chanet did not support the paragraph as it is drafted, since it can be counterproductive to provide instructions on how the state could ensure media independence as the second half of the  paragraph tries to do. For example, the prescriptions in the second half of the paragraph are very weak, and they do not support any particular model to guarantee independence. Furthermore, Ms Chanet observed the issue was far to complicated to elaborate on properly and there is no case law available. Taking note of these concerns, the Committee adopted a revised version of paragraph 16: 'State parties should ensure that public broadcasting services operate in an independent manner. In this regard, State parties should guarantee their independence and editorial freedom. They should provide funding in a manner that does not undermine their independence.'

Throughout the session, the Committee struggled with the incorporation of a paragraph on new or social media. Multiple commentators and all members of the Committee unanimously expressed the necessity of a contemporary General Comment, specifically given the use of new media in the situations in North Africa. Over the course of the session, Mr. O’Flaherty drafted a new paragraph on social media. The paragraph 16bis says: 'States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.'

The last meeting on the 24 March started with a lengthy debate regarding the specification of public bodies in paragraph 18. Some experts favoured mentioning all three branches of government. Others wanted to remove specific reference to the judiciary. Mr. O’Flaherty resolved the issue by pointing out that the Committee had already addressed the issue in paragraph six. Therefore, he proposed alternative language: 'Public bodies are as indicated in paragraph 6 of this General Comment.' Under the same section on the right to access of information, a suggestion was made to include an extra paragraph on the leaking of information, in particular on whistleblowers. While most Committee members recognized that the treatment of whistleblowers was an important topic, they did not want to include it in the General Comment since they had no solid jurisprudence in that area. 

The subsequent section under the heading 'freedom of expression and political rights,' consists of merely one paragraph. It was observed that the two middle sentences of the paragraph are identical to those in paragraph 14. The Committee, however, found itself unable to remove the two sentences arguing that the paragraph would lose meaning.

In terms of paragraph 23, which covers the application of restrictions on freedom of opinion and expression, the Committee had received a proposal that the draft Comment include a reference not only to the principle of necessity but also to that of proportionality. Though Ms. Chanet pointed out that the principle of proportionality is already dealt with extensively in paragraph 35, the Committee believed that a reference to proportionality would also be appropriate in the context of paragraph 23. Hence, a phrase will be inserted as follows: 'restrictions must meet a strict test of necessity and proportionality'.

The final paragraph under scrutiny was paragraph 24. The main criticism was that preventive strategies were overlooked. A human rights organisation recommended the draft Comment include that 'State Parties should put in place effective measures to protect against attacks aimed at silencing those exercising their right of freedom of expression.' The Committee was sympathetic to this approach, and adopted that wording.  Furthermore, it was noted that the International Court of Justice has found that, in addition to journalists and human rights defenders, judges and lawyers also need special protection. Again, this suggestion was added to the text in paragraph 24 without any resistance.

The Committee will continue the second reading of the draft Comment in July 2011 in Geneva.

Other resources

Extensive notes by the Open Society Institute on the public meetings on the second reading of General Comment 34 are available at http://freedominfo.org/documents/HRCnotesMarch2011.pdf

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1984

ISHR commences work to develop an international Declaration on the Rights of Human Rights Defenders

1988

ISHR publishes first Human Rights Monitor, connecting human rights defenders on the ground with international human rights systems and developments

1993

ISHR facilitates global civil society engagement with the Second World Conference on Human Rights, which leads to the strengthening of women’s rights, the affirmation of universal rights, the adoption of the Vienna Declaration and Programme of Action and the establishment of the Office of the UN High Commissioner for Human Rights

1994

ISHR provides training, technical assistance and support to its 1000th human rights defender

1998

After 14 years of ISHR lobbying, advocacy and negotiation, the UN General Assembly adopts the landmark Declaration on Human Rights Defenders

2000

UN Secretary-General appoints Hina Jilani as inaugural UN Special Representative on Human Rights Defenders, strengthening protection of human rights advocates at risk worldwide.

2004

ISHR leads a successful campaign for the appointment of a Special Rapporteur on Human Rights Defenders by the African Commission on Human and Peoples’ Rights

2005

ISHR co-founds and supports a range of international and regional human rights coalitions, including the Women Human Rights Defenders International Coalition, the East and Horn of Africa Human Rights Defenders Project and the West African Human Rights Defenders Network

2006

ISHR contributes to the establishment and institution building of a new global peak body for human rights issues, the UN Human Rights Council

2007

ISHR leads and coordinates the development of the Yogyakarta Principles on sexual orientation and gender identity, strengthening legal recognition and protection of LGBT rights worldwide

2011

ISHR’s sustained advocacy on the issue of reprisals and intimidation faced by human rights defenders leads to adoption of landmark UN Human Rights Council resolution condemning and strengthening protections against reprisals

2012

Working with key NGO partners such as Amnesty International, ISHR leads civil society efforts to strengthen UN human rights treaty bodies, prevent their weakening and better connect their work with victims and human rights defenders on the ground

2013

Working with supportive states and NGOs, ISHR advocacy leads to adoption of historic Human Rights Council resolution calling on all States to review and amend national laws to respect and protect the work of human rights defenders