The United Nations Human Rights Council (UNHRC) just wrapped up their 40th regular session ‘HRC40’. The session ran between February 25th and March 22nd 2019 in Geneva, Switzerland, and explored issues ranging from the rights of persons with albinism to human rights in sports. The UNHRC is a UN body with 47 elected members, whose mission is to promote and protect human rights around the world. Their brief includes investigations of breaches of human rights in UN member states as well as thematic research.
In this piece, we review some of the key human rights-focused discussions held at HRC40 that relate to the work of the Regional Office of the Friedrich Naumann Foundation for Freedom (FNF) in South Asia.
Indeed, human rights are under siege around the world.
Universal values are being eroded. The rule of law is being undermined.
Now more than ever, our shared duty is clear:
Let us stand up for human rights - for everyone, everywhere.
Business and Human Rights
The UNHRC considered a report submitted by an intergovernmental working group on transnational corporations and other business enterprises. This group has been developing an international legally binding instrument to regulate the human rights impact of corporate activities, releasing a first draft in October 2018. The instrument represents one of the first attempts towards formally regulating the behaviour of business entities in international human rights law despite the increasing recognition of the massive power held by large corporations. It recognizes the potential for abuses of human rights to be facilitated by this power. While the UN has previously released guiding principles on business and human rights, this draft represents an important legal development.
The draft provides for state facilitation of civil, criminal and administrative liability for human rights violations by transnational corporations and suggests pro-active monitoring of the human rights impact of businesses. The draft imposes obligations on states in line with general practice in international law.
The UNHRC session discussed the draft, which was noted as a good starting point for negotiations. Delegates welcomed the recognition that the primary responsibility for human rights remains with states, but held divergent views on whether businesses should be consulted during the drafting process. Several delegates also felt the scope of the instrument was too restrictive and requested clarity on the rights covered.
While this draft represents an important step, the concerns raised above - along with those around jurisdiction - combined with the already tenuous adoption and enforcement of international law may lead to this instrument not being as effective as hoped.
HRC40 saw the convening of a biennial high-level panel discussion on the question of the death penalty with a focus on non-discrimination and equality in the implementation of the death penalty. Michelle Bachelet, UN High Commissioner for Human Rights, began by highlighting the disproportionate imposition of the death penalty on marginalised groups, noting the global trend of death rows being filled with poor, economically vulnerable or otherwise disadvantaged social groups. In an Indian context, this has been borne out by the research done by FNF partner organisation, Project 39A.
Following this, Belgian Deputy Prime Minister Didier Reynders (speaking on behalf of a group of states) reiterated the futility of the death penalty as a deterrent and called for unilateral full abolition. Melinda Janki of the Justice Institute Guyana noted that the death penalty sent a message that some lives are worth less than others similar to the operation of slavery. Speakers commended the December 2018 adoption of a UN General Assembly resolution seeking a moratorium on the death penalty.
However, it is notable that despite a broad consensus on the incompatibility of the death penalty with respect for human rights, it continues worldwide. Six countries still impose the death penalty for consensual same sex relations. Several delegations, including from India, reiterated their sovereignty over criminal justice systems. These voices continue to remain prominent despite repeated calls to the contrary and illuminate the fragility of the international human rights framework.
Democracy and Human Rights
The UNHRC considered a report by the Forum on Human Rights, Democracy and the Rule of Law focused on parliaments and their role in promoting human rights and democracy. The Vice-President of the HRC, in opening the session, noted the mutually reinforcing character of human rights, democracy and the rule of law. He underscored the fact that parliaments are the primary repository of citizen’s trust in a democracy and that strong parliaments are essential to a society aspiring towards accountability, inclusion and respect for human rights. The High Commissioner then called upon parliamentary bodies worldwide to protect civic space, citing frequent legislative restrictions on civic participation.
A member of the Tunisian parliament suggested that for a strong parliament, it would need to be a representative institution, encompassing the breadth of a states’ diversity, as well as a consultative one. Without these two elements, it would not be possible to build trust in the institution.
It was also pointed out that in several countries, parliamentarians are under attack. In 2017, 507 human rights violations were recorded against parliamentarians according to the Inter-Parliamentary Union. A parliamentarian from Benin pointed out that the ability of parliamentarians to adequately safeguard rights depends on their own safety.
The discussion ended with a range of recommendations, including several reaffirming the vital role of parliaments in safeguarding democracy, calling for checks and balances over the executive as well as mainstreaming human rights.
The Internet and digital technologies
The Secretary General of the United Nations; António Guterres, opened HRC40 by highlighting some key challenges to human rights today. He expressed alarm at shrinking civic spaces in multiple countries – as well as online. He highlighted the fact that activists and journalists are being targeted by surveillance, misinformation campaigns, and threats of violence that too often result in actual violence; stating “The immediacy and reach of online threats pose serious challenges to those who wish to speak up.”
He also recognised the threat posed by newer technologies such as big data and facial-recognition technology that are being misused for surveillance and interference with free speech, causing a chilling effect. Finally, he railed against the impact that the internet and social media has on hate speech propagating xenophobia, racism and intolerance, including rising anti-Semitism and anti-Muslim hatred and discourse that stigmatizes women, minorities, migrants, refugees and any so-called “other”.
The Right to Privacy
Prof. Joseph A. Cannataci, the Special Rapporteur on the right to privacy submitted his report in which he highlighted a critical contradiction: while most Member States unequivocally commit themselves to protecting the right to privacy, many are acting in ways that increasingly put it at risk by employing new technologies that are incompatible with the right to privacy. Technologies such as big data and health data infringe upon the dignity of their citizens based on gender or gender identity and expression, as well as by arbitrarily surveying these citizens. In his report, he also called upon Member States to adopt a series of data protection principles similar to Convention 108 of the Council of Europe.
He recognized the specific intersectional benefits, experiences and threats that class, religion, race, gender and sexual orientation have on privacy rights of the individual and called upon states to adopt an approach that considers these in policy, legislation, services, regulation, support to civil society organizations, and educational and employment frameworks.
The Special Rapporteur also introduced a draft set of guiding principles concerning the processing of health-related data, which emphasises the importance of a legitimate basis of any such processing.
Finally, he debuted a draft outline of “Metrics for Privacy” which would be used as a standard investigation tool during country visits. The assessment tool contains 28 questions assessing various aspects of a country’s protection of human rights online like constitutional guarantees of privacy & free expression, the nature of surveillance and parliamentary & regulatory oversight.
The Right to Freedom of Religion or Belief
The Special Rapporteur on freedom of religion or belief, Ahmad Shaheed, submitted a report in which he highlighted the mutually reinforcing relationship between freedom of expression and the freedom of religion or belief. He suggested they are both fundamental to a democratic society and individual self-fulfilment. He called on Member States to pursue a restrained approach in addressing the balance between freedom of expression and freedom of religion or belief, citing the opinion of some states that these rights are incongruous and irreconcilable.
He expressed concern at the increasing censorship that most of the world’s internet users experience at the hands of states who adopt measures to combat incitement as well as tech companies who have adopted voluntary measures for swiftly removing content deemed illegal upon notification. Coupled with vitriolic public rebuke, these measures have the outcome of chilling expression and making people self-censor.
He viewed State attempts to combat incitement as having contributed to the emergence of “digital authoritarianism” through increased surveillance, encroachment on privacy and broad restrictions on expression related to religion or belief, which have rendered cyberspace a perilous place for dissenters and religious minorities
He voiced concern with the rising trend of holding intermediaries (Twitter, Facebook, Google etc.) responsible for hosting “hate speech” content uploaded by third parties. In focus was the German NetzDG in which criteria for removal of content are based on vague and ambiguous terms such as “insult” or “defamation”.
Interestingly, he recognized the human bias that may creep into the design of online tools designed to combat expression that constitutes incitement. He stated that their use might reinforce societal prejudices against minorities, exposing them to further stigmatization, discrimination and marginalization.
Finally, he recognized that individuals and whole communities may be targeted through the manipulation of online filters. He also noted that the use of some tools, such as facial recognition technology, risks undermining the activities of civil society actors.
The State of Women Human Rights Defenders
The Special Rapporteur on the situation of human rights defenders (HRDs) Mr. Michel Forst, submitted a report with a special focus on the situation of women HRDs. He recognized that social constructions of gender shape the perception that women defenders challenge traditional notions of family and gender roles in society. This perception can generate hostility from State actors and from the public, the media and other non-State actors.
He recognized the risks that women HRDs face are shaped by patriarchal narratives as well as their position in castes, tribes, clans, ethnicities or races and nations.
Of note was the focus placed on online harassment, violence and attacks against women HRDs; including threats of sexual violence, verbal abuse, sexuality baiting, doxxing (a practice in which private information about a person is shared online by others) and public shaming. The Special Rapporteur recognized Indian journalist Rana Ayyub and the misogynistic vitriol, hate speech and threats of sexual violence she faced online following the release of her book challenging the ruling party’s narratives. Her case is especially important as a “deepfake” pornographic video was circulated online. “Deepfake” videos, in which images and videos are combined and manipulated to create a computer-generated replica, are a rising threat to women HRDs.
In his list of priorities, identified in cooperation with women HRDs, the Special Rapporteur stated that these women should be receive holistic support, focusing on physical, psycho-social and digital security. Finally, he recommended that Member States prioritize the protection of women HRDs online and adopt laws, policies and practices that protect their privacy and shield them from libel and hate speech.
Shuchita Thapar is the Program Manager - Human Rights at the Regional Office of the Friedrich Naumann Foundation for Freedom (FNF) in New Delhi. In this commentary she shares her personal views.
Rajat Kumar is the Program Manager - Digital Transformation at the Regional Office of the Friedrich Naumann Foundation for Freedom (FNF) in New Delhi. In this commentary he shares his personal views.