Corinne Lewis, Partner Lex Justi

The views expressed in this blog do not necessarily represent the views of the American Bar Association.  

Around the globe, governments are increasingly seeking to silence or stifle the work of civil society actors (CSAs), that is, human rights advocates, nongovernmental organizations, and other persons and associations that contribute to the promotion and protection of human rights. Governments are using not only more traditional forms of repression, harassment, disappearance, imprisonment, and execution, but also other measures that are in some ways not as apparent to the public and are more insidious and abhorrent.

Examples of such measures include burdensome registration requirements; limitations on scope of work; the abuse of counter-terrorism laws and COVID-19 regulations; prohibitions on publications and blocking of internet sites; and constraints on funding. Governments are also using criminal prosecutions and civil measures to stop advocacy work.

The American Bar Association (ABA) took an important step last month when it adopted a policy resolution (Resolution 507) on the protection of civil society actors (CSAs). The resolution originated from the recognition that there is a need to expressly acknowledge and counter governmental measures that curtail and inhibit the work of CSAs.  I, the Immediate past Co-Chair of the International Human Rights Committee, in the International Law Section of the ABA, and another ABA human rights lawyer, Deena Hurwitz, had the pleasure of leading an ABA working group that drafted the Resolution and its associated Report, from which I have liberally drawn upon in this blog.

The Resolution covers a wide range of CSAs, and expressly includes organizations as well as individuals.  Thus, the Resolution seeks to further the protection of CSAs and their rights, whether the CSA works in legal services and legal aid; development; anti-corruption; environmental protection; the combatting of disease and hunger; delivery of public services; public safety; or humanitarian assistance. Deprivation of their rights severely impacts the individuals and organizations, specifically, their work that furthers human rights, democracy, and the rule of law.

In the Resolution, the ABA condemns laws, restrictions, and other measures placed on peaceful and lawful civil society actors, including the adoption or application of vaguely worded counter-terrorism laws, that are inconsistent with international law. The Resolution also urges the United States, all other governments, and the United Nations and other international organizations, to ensure that, consistent with international law, governments protect and respect the rights of CSAs based on the five fundamental principles listed in the Resolution.

Five Key principles for protection of CSAs

The five fundamental principles listed in the Resolution are based on international human rights law and are essential to the viability of CSAs and their ability to carry out their work.

These are:

a. governments, in carrying out their responsibility to protect human rights, act with due diligence to prevent, investigate, and punish violations of the human rights of CSAs, including acts perpetrated by non-state actors;

b. national laws and measures protect – not impede the peaceful and lawful operation of CSAs, consistent with international law;

 c. CSAs are free to seek, receive, share, and impart information and ideas lawfully, including through advocacy of their opinions to governments, international organizations, and the public within and outside the countries in which they are based;

d. governments do not impede CSAs from lawfully seeking, receiving, and using resources for their lawful and peaceful activities; and

e. any criminal, civil, and administrative legal actions brought by governments against CSAs, include tenets of due process and equality before the law.

These rights are grounded in the Universal Declaration of Human Rights, adopted 75 years ago, this year, which has served as a basis for a range of subsequent international human rights instruments.

International Recognition and Protection of CSAs

The international community of States has expressly and formally acknowledged the importance of CSAs and the need to ensure their protection. In a consensus resolution adopted in 1998, the United Nations General Assembly (UNGA) recognized the essential role and contributions of CSAs. Specifically, on the 50th anniversary of the Universal Declaration of Human Rights, the UNGA adopted 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 (commonly known as the UN Declaration on Human Rights Defenders and referred to here as the UDHRD). UN Member States made a strong commitment to practical implementation of the Declaration’s provisions. Drawing upon the UN Declaration of Human Rights and the International Covenants on Human Rights, complemented by other UN human rights instruments, the UDHRD affirms legal protections for CSAs under international human rights law, including freedom of association; the right to peaceful assembly; the right to participate in public affairs; freedom of movement; and freedom of expression.

In 2018, on the 20th anniversary of the UDHRD and in the face of increasingly repressive measures taken by governments against CSAs, States reaffirmed the importance of the UDHRD by adopting a UNGA resolution that “[c]alls upon all States to take all measures necessary to ensure the rights and safety of all persons, including human rights defenders, who exercise, inter alia, the rights to freedom of opinion, expression, peaceful assembly and association, which are essential for the promotion and protection of human rights.”

Governments’ Obligations Under International Human Rights Law concerning CSAs

Governments have a legal obligation to protect and respect human rights consistent with international human rights law, both customary and treaty laws. Governments should ensure that all individuals, groups, and organs of society can enjoy civic space. The governmental obligation to protect human rights includes acting with due diligence to prevent, investigate, and punish violations of the human rights of CSAs, including acts perpetrated by non-state actors. In addition, governments’ national laws and measures should protect, not impede, the peaceful and lawful operation of civil society actors, consistent with international law, including international human rights law.

The ability of CSAs to seek and receive information through communication with individuals, groups of persons, and entities and organizations, among others, is essential to their work. Similarly, their ability to share and communicate opinions and information to others, including the public and other organizations, underpins their advocacy and service work. The right to freedom of opinion and expression, which includes the freedom to seek, receive and share information, is protected in international human rights law under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and a range of other international and regional instruments. This freedom is closely linked to the freedom of association. Thus, CSAs should be free to lawfully seek, receive, share, and impart information and ideas, including through advocacy of their opinions to governments, international organizations, and the public within and outside the countries in which they are based, consistent with international law.

Inherent in the operational capacity and ability of any organization is the need to raise and utilize financial resources. The right of CSAs to seek and secure resources is protected by the freedom of association (ICCPR Art. 22) and includes the procurement of resources from both domestic and foreign entities. This right is also grounded in the UDHRD and the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.  Thus, governments should not impede CSAs from lawfully seeking, receiving, and using resources for their lawful and peaceful activities, consistent with international law.

States must respect the fundamental protections of international human rights treaties and norms when civil penalties are brought to bear. Additionally, international law establishes robust due process protections for those accused of criminal acts, including terrorism.  When States proclaim a state of emergency and wish to derogate from their due process human rights obligations, they must ensure that the emergency measures and legislation are limited to the exigencies of the situation and are exceptional and temporary in nature.

In sum, the ABA’s adoption of this policy for the protection of CSAs is a clear acknowledgment that there is still a great deal to be done to ensure that CSAs can carry out their functions and activities without inappropriate government interference.  At the same time, governments, themselves, and the United Nations and other international organizations need to take steps to ensure that governments are held accountable for their violations of the rights of CSAs.