On 23 October 2009, the Special Rapporteur on the human rights defenders, Ms. Margaret Sekaggya (Uganda), called on States in the Third Committee of the General Assembly to do away with laws that required NGOs to register before they could operate. She was concerned that States were increasingly using security and counter-terrorism laws or more ¡¥subtle means¡¦, such as the judiciary and public administration, to restrict, disrupt, and in some cases, ¡¥completely eliminate¡¦ the work of human rights defenders. In order to give effect to the right to freedom of expression and association, States were also advised not to criminalise the activities of unregistered groups, or subject human rights defenders to baseless charges of slander or defamation.
In a departure from the common practise amongst UN special procedures, the Special Rapporteur chose not to refer to any countries by name in her report or her comments to the Third Committee. Whilst this very diplomatic approach might have found favour with States who do not wish to be publicly ¡¥named and shamed¡¦, and may encourage others to be more open to cooperation with the mandate holder, some States were clearly not convinced of the merits of this approach. For example, during the interactive dialogue that followed, the UK raised concerns about the ¡¥repressive measures¡¦ against civil society organisations in Iran and the Russian Federation; the US asked her to name the countries that imposed the greatest obstacles to human rights defenders; and several States asked her to identify best practice models.* In response, the Special Rapporteur encouraged States to use the universal periodic review process to identify model practices, given that all States were required to participate in it. She did not believe referring to offending States by name would improve the situation for human rights defenders.
The Special Rapporteur¡¦s report to the General Assembly provided an update to the 2004 report of her predecessor, which also analysed the right to freedom of association and how it applied to human rights defenders. As she explained to the Third Committee, the adoption of increasingly restrictive national laws in all regions of the world was adversely impacting on the ability of the civil society sector to function. She expressed ¡¥serious concern¡¦ about the level of restrictions applied to organisations monitoring and speaking out about human rights violations or otherwise taking a critical stance on government actions and policies. These developments had serious adverse implications for the promotion and protection of human rights worldwide.
In her report, the Special Rapporteur sought to provide clear guidance to States on the international law regarding freedom of association, including what limited restrictions were permissible in specific circumstances. She also detailed the practical steps States must take to create an ¡¥enabling environment¡¦ for human rights defenders and their organisations. For example, any laws related to the creation, registration and functioning of NGOs should be written, and contain ¡¥clear, consistent and simple criteria.¡¦ Further, the registration (and re-registration) process should be prompt, easily accessible, inexpensive and open to appeal by an independent body. However the Special Rapporteur stressed that registration should not be compulsory.
Another concerning practice identified in the report was the growing number of States that were restricting the freedom of association by directly interfering in the management of NGOs. The Special Rapporteur cited a number of bad practices, such as members of an organisation¡¦s governing body being appointed or removed by the government; decisions being rendered invalid if a government representative had not participated in the board meeting; and organisations being subject to arbitrary auditing or random checks designed to intimidate them.
Only a relatively small number of States (11) took part in the interactive dialogue, with Chile, Cuba and India being the only non-Western States. Cuba and India were both interested in the Special Rapporteur¡¦s remarks on the need for NGOs to operate free of undue restrictions on soliciting and receiving foreign funding. India for example, wanted to know how States could reach a balance between legitimate concerns about money-laundering and financing for terrorism on the one hand, and avoiding restrictions on the operation of NGOs on the other. In response, the Special Rapporteur pointed out that the Declaration on Human Rights Defenders required NGOs to operate within the law; therefore, if an organisation was suspected of breaking the law, it should be investigated, reviewed and if necessary, brought to justice.
Due to time constraints, the Special Rapporteur undertook to post additional responses on her website. She advised that her next report to the 13th session of the Human Rights Council would cover her visits to the Democratic Republic of the Congo and Columbia.
* Sweden (on behalf of the EU), Norway, UK, Australia.
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