Commentary to 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

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 is an international instrument for the protection of the right to defend human rights.

The Declaration reaffirms rights that are instrumental to the defence of human rights, including, inter alia, freedom of association, freedom of peaceful assembly, freedom of opinion and expression, and the right to gain access to information, to provide legal aid and to develop and discuss new ideas in the area of human rights. Implementing the Declaration is a precondition for the creation of an environment that enables human rights defenders to carry out their work (A/63/288 Annex, para. 2).

The mandate notes that some Governments have made efforts to ensure that domestic legislation reflects State obligations contained in the Declaration and other international human rights standards (E/CN.4/2006/95, para. 49). Notwithstanding some positive developments, the information received by the mandate suggests that the current trend in many countries is to pass laws and regulations restricting the space for human rights activities. Numerous national laws continue to be or have become incompatible with international standards and with the Declaration in particular. While most national Constitutions formally guarantee human rights, secondary laws have subsequently restricted rights that are pivotal for the full implementation of the Declaration. In many cases, States have used these domestic laws to legitimize violations of human rights and to seriously impair the work of human rights defenders. In addition, even where efforts are made to adopt laws that are in line with international standards, their inefficient implementation in practice remains a recurrent problem. (E/CN.4/2006/95, para. 50).

The Special Rapporteur believes that further efforts are needed to improve understanding of the responsibilities1 enshrined in the Declaration on human rights defenders. More than a decade after its adoption by the General Assembly, the Declaration is not an instrument that is sufficiently familiar either to those who bear the principal responsibility for its implementation—namely, Governments—or to its rights-holders, human rights defenders (A/63/288, para. 60).

The purpose of this commentary is to fill this gap by enhancing States‘ understanding of the responsibilities contained in the Declaration, as well as to increase awareness of this instrument among relevant non-state actors that can contribute to the development of a conducive environment for the work of defenders. Additionally, this commentary aims to enhance the capacity of human rights defenders to ensure respect for the rights to which they are entitled under the Declaration. This commentary is based on the analysis of information received and reports produced by both mandate holders - Mrs. Margaret Sekaggya, Special Rapporteur on the situation of human rights defenders, and her predecessor Ms. Hina Jilani, Special Representative of the Secretary General on the situation of human rights defenders.

The commentary is divided into 10 chapters, each addressing one of the rights provided for in the Declaration, namely: The right to freedom of opinion and expression; the right to freedom of association; the right to freedom of assembly; the right to protest; the right to access funding; the right to access and communicate with international bodies; the right to be protected; the right to an effective remedy; and the right to develop and discuss new ideas in the area of human rights. A final chapter addresses permissible derogations from these rights.

Each chapter describes the legal framework where the particular right is recognized, not only in the Declaration, but also in other regional and international instruments. It further analyses what the different rights entail and the different aspects necessary to ensure their implementation. Each chapter also includes a section describing the most common violations faced by defenders and a set of good practices and recommendations aimed at facilitating State‘s implementation of that particular right. Mindful that the Declaration is not an isolated instrument and that its implementation must draw support from the body of international law and human rights norms, the commentary includes many references and legal analyses from other regional and international bodies.

In accordance with the Special Rapporteur‘s mandate to integrate a gender perspective throughout her work, this commentary pays particular attention to the specificities of the situation of women human rights defenders and the particular challenges they face. In this regard, both mandate holders have reiterated on several occasions that women defenders are more at risk of suffering certain forms of violence and other violations, prejudice, exclusion, and repudiation than their male counterparts. This is often due to the fact that women defenders are perceived as challenging accepted socio-cultural norms, traditions, perceptions and stereotypes about femininity, sexual orientation, and the role and status of women in society. Their work is often seen as challenging ?traditional? notions of the family, which can serve to normalize and perpetuate forms of violence and the oppression of women. This can, in certain contexts, lead to hostility or lack of support from the general population, as well as from the authorities (A/HRC/16/44, para. 23).

The term women human rights defenders in this commentary refers to women who, individually or in association with others, act to promote or protect human rights, including women‘s rights. Because of the similarities of the situations that they face, the term women human rights defenders can also refer to male human rights defenders working on women‘s rights as well as on gender issues more generally (A/HRC/16/44, para. 30).

1 Although not a legally binding instrument, the Declaration on human rights defenders contains rights that are already recognized in many legally binding international human rights instruments, including the International Covenant on Civil and Political Rights. The Declaration specifies how the rights included in major human rights instruments apply to human rights defenders and their work. In addition, the Declaration was adopted by consensus by the General Assembly, which consequently represents States‘ strong commitment towards its implementation.

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