The raison d’être of human rights defenders is to build just and civil societies in their own countries. They often do so at great risk and under constant pressure. We need flexible visa systems for them, so that they can get out when the risk is high or the pressure too much, and go back afterwards to continue their work.
Mary Lawlor, UN Special Rapporteur on the situation of human rights defenders, interview with FRA, 8 March 2023
EU law does not contain a legally binding definition of the term human rights defenders as such. The EU typically refers to the UN Declaration on Human Rights Defenders in its work.
A proposed EU directive [8] European Commission (2022), Proposal for a directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (‘Strategic lawsuits against public participation’), COM(2022) 177 final, 27 April 2022. on strategic lawsuits against public participation (SLAPPs) (which applies to matters of a civil or commercial nature with cross-border implications) aims to protect people who engage in public participation from manifestly unfounded or abusive court proceedings. In the proposal, under Recital 7, they refer to human rights defenders as “individuals or organisations engaged in defending fundamental rights and a variety of other rights, such as environmental and climate rights, women’s rights, LGBTIQ rights, the rights of the people with a minority racial or ethnic background, labour rights or religious freedoms. Other participants in public debate, such as academics and researchers, also deserve adequate protection.”
Terminology
Human rights defenders
For this report, FRA uses the term ‘human rights defenders’ in line with the 2008 EU guidelines on human rights defenders:
“Human rights defenders are those individuals, groups and organs of society that promote and protect universally recognised human rights and fundamental freedoms. Human rights defenders seek the promotion and protection of civil and political rights as well as the promotion, protection and realisation of economic, social and cultural rights. Human rights defenders also promote and protect the rights of members of groups such as indigenous communities. The definition does not include those individuals or groups who commit or propagate violence.”
Source: Council of the EU, Ensuring protection – European Union guidelines on human rights defenders, 2008, paragraph 3.
The European Commission uses the same description in its recommendation on the same matter, adopted in April 2022. [9] European Commission, Commission Recommendation (EU) 2022/758 of 27 April 2022 on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (‘Strategic lawsuits against public participation’), C/2022/2428, OJ L 138, 17.5.2022, p. 30–44, Recital 7.
The broad approach taken in the 2008 EU Guidelines builds on the position taken by the UN system. The Office of the United Nations High Commissioner for Human Rights (OHCHR) [10] UN OHCHR (2022), Local Governments protecting Human Rights Defenders, p. 2. See also UN OHCHR (2004), Fact Sheet 29: Human Rights Defenders: Protecting the Right to Defend Human Rights underlines that:
HRDs are all persons, who individually or in association with others, act peacefully to promote or protect human rights. HRDs include individuals and members of groups and associations that can act locally, nationally and/or internationally. Human rights defenders are active in every part of the world, trying to promote and protect human rights of all often in difficult situations. In many countries, they have been the target of killings, torture, beatings, arbitrary arrest and detention, threats to them and their family, harassment, and defamation, as well as restrictions on their freedoms of movement, expression, association, and assembly. HRDs have also been the victims of false accusations and unfair trials and convictions. The world has witnessed a shrinking of civic space and an increase in attacks on human rights. Human rights defenders have been subject to threats, intimidation, and violence online and offline.”
Acting collectively or individually, HRDs are typically involved in documenting, reporting and peacefully opposing human rights violations; providing legal, psychological, medical or other practical support to victims of such abuses where they occur; and promoting knowledge and respect for human rights.
Human rights defenders may be active at different levels of society, from the local to the national, regional and international. While some may be human rights lawyers and/or members of registered human rights organisations or trade unions, many operate at grassroots level, outside formalised associative structures. Their efforts contribute to the realisation of the entire spectrum of recognised human rights, and to the development, discussion and acceptance of human rights.
The rights and responsibilities of human rights defenders were recognised in 1998 through the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, [11] UN-OHCHR (1998), Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, A/RES/53/144 commonly referred to as the UN Declaration on Human Rights Defenders which was adopted by consensus by the UN General Assembly. The declaration outlines the rights of defenders (see box ‘UN Declaration on Human Rights Defenders: human rights defenders’ role and rights’) and the duty of states to protect defenders (see box ‘UN Declaration on Human Rights Defenders: states’ responsibilities and duties’). It recognised for the first time the role of everyone in defending rights, not just States. This was followed in 2000 by the creation of a mandate for a UN Special Rapporteur on the situation of human rights defenders to promote the Declaration’s effective implementation. [12] For more information see the UN-OHCHR webpage on the Special Rapporteur on the situation of human rights defenders
Since the adoption of the declaration, several states have adopted legislation or policies on the role of human rights defenders and on the responsibility of states to support and offer them protection. [13] For an overview of existing national legislation and policies concerning human rights defenders, see Protection International’s Observatory on Public Policies for the Protection of Human Rights Defenders, available at www.focus-obs.org/ (last accessed 8 March 2023). For an overview of soft-law in the area, see the database maintained by the International Service for Human Rights available at https://ishr.ch/defenders-toolbox/national-protection (last accessed 8 March 2023). UN treaty bodies regularly refer to human rights defenders. [14] For example, see the General Comment No. 26 (2022) on Land and Economic, Social and Cultural Rights (E/C.12/GC/26), in particular paras 54-55; General Comment No. 36 (2019) on the right to life (CCPR/C/GC/36), in particular paragraphs 23 and 53; and General Comment No. 37 (2020) on the right of peaceful assembly (CCPR/C/GC/37), para 30.
The OSCE Guidelines on human rights defenders of 2014 also focus on protection of human rights of those who are at risk as a result of their human rights work. [15] OSCE (2014), Guidelines on the Protection of Human Rights Defenders
In addition, the Inter-American Court of Human Rights adjudicated cases concerning human rights defenders. It concluded, for instance, that states are obliged not only “to create the legal and formal conditions, but also to ensure the real conditions in which human rights defenders can freely carry out their work” and to provide “the necessary means” in that regard. [16] For example, see the case on Human Rights Defender et al v Guatemala (28 August 2014), in particular, para 142.
The protection of human rights defenders has been further developed in the context of environmental protection law. Article 3 (8) of the Aarhus Convention – to which the EU and all its Member States are party – contains a duty whereby people exercising their rights under the convention should not be penalised, persecuted or harassed. [17] UN Treaties (1998), Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters Aarhus, Denmark, 25 June 1998, UN Treaty Series, available at: vol. 2161, p. 447. For more information, see the UNECE webpage About the Special Rapporteur on Environmental Defenders Based on this provision, in 2021 the parties to the convention adopted a rapid response mechanism to protect environmental defenders. [18] Economic Commission for Europe (2021), Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ECE/MP.PP/2021/19, 18-20 October 2021.
Legal Corner
UN Declaration on Human Rights Defenders – Human rights defenders’ role and rights
● Article 1: ’Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms (…)’
Source: OHCHR (1998), Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms, A/RES/53/144
The Declaration on human rights defenders also outlines the responsibilities of states vis-à-vis human rights defenders (see the box below). For a comprehensive overview of rights connected to the right to promote and protect human rights, see the full text of the declaration. [19] UN-OHCHR (1986), Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, A/RES/53/144
Legal corner
UN Declaration on Human Rights Defenders – states’ responsibilities and duties
For the EU, human rights defenders are ‘natural and indispensable allies’ in the promotion of human rights and democracy externally,[20] For more information, see the EEAS website for the EU Guidelines on Human Rights Defenders and within the EU they are considered ’essential in our constitutional democratic societies to bring life to and protect the values and rights enshrined in Article 2 of the Treaty on European Union (TEU) and in the Charter’. [21] European Commission (2022), A thriving civic space for upholding fundamental rights in the EU 2022 Annual Report on the Application of the EU Charter of Fundamental Rights
Political and financial support for human rights defenders is a long-established element of the EU’s external human rights policy. The EU guidelines on human rights defenders are the primary embodiment of this prioritisation.
Courageous individuals fighting for human rights worldwide frequently find themselves the target of oppression and coercion; the EU will intensify its political and financial support for human rights defenders and step up its efforts against all forms of reprisals.
Council of the European Union (2012), EU Strategic Framework and Action Plan on human rights and democracy
The EU adopted the guidelines on human rights defenders for its external policies in 2004 and revised them in 2008. [22] For more information, see the EEAS website for the EU Guidelines on Human Rights Defenders In 2012, they were reinforced through the EU Strategic framework and action plan on human rights and democracy. [23] Council of the European Union (2012), EU Strategic Framework on Human Rights and Democracy (2012) See point 18, p 15. The Council Working Party on Human Rights (COHOM) adopted an internal Guidance note for EU Missions on the effective and consistent implementation of the EU Guidelines on human rights defenders in 2014, which was revised in 2020 [24] Council of the European Union, EU Guidelines on Human Rights Defenders – Guidance Note 2020, COHOM 56, COPS 253, CFSP/PESC 635 (not public) to reflect the EU Action plan on human rights and democracy 2020-2024. [25] EEAS (2020), EU Action Plan on Human Rights and Democracy 2020-2024, 19 November 2020. The guidance note (not publicly available) gives instructions to EU delegations and EU Member State embassies on how to adapt protection measures to current challenges (such as digital threats) and to specific groups of human rights defenders (LGBTIQ, land and environmental, women human rights defenders).
The current action plan calls for the systematic and coordinated use of the guidelines, regular dialogue with civil society and human rights defenders, and direct support for defenders. [26] EEAS (2020), EU Action Plan on Human Rights and Democracy 2020-2024, 19 November 2020, p. 10. On this basis, every EU delegation has a pluri-annual human rights and democracy country strategy (2020-2024) (not publicly available). According to the EEAS, civic space and human rights defenders are noted as a priority in most of these strategy documents.
The guidelines, read alongside the internal guidance notes, suggest a range of specific actions for the support and protection of human rights defenders by the EU. They include, in the relevant countries, actions such as nominating an EU liaison officer on human rights defenders in every country where the EU is represented; connecting regularly with and among defenders; visiting defenders at risk, in detention or under house arrest; trial observation; and more generally promoting an open civic space and a safe and enabling environment while strengthening monitoring and improving reporting. It notably also includes the suggestion to improve training of EU and Member State staff for a better understanding of the protection needs of human rights defenders.
The guidance note also calls on EU delegations, in particular local Schengen correspondents, to exchange information with EU Member States on the ground, and to raise awareness of protection and relocation needs of human rights defenders.
Another key point is the provision of support in visa procedures for human rights defenders at risk and the strengthening of temporary relocation mechanisms.
Strengthen temporary relocation mechanisms
Source: Council of the European Union, EU guidelines on human rights defenders – Guidance note 2020, COHOM 56, COPS 253, CFSP/PESC 635 (not publicly available), p. 17.
In addition, in May 2023, the EU’s Education, Youth, Culture and Sport Council adopted Council conclusions specifically on at-risk and displaced artists, which stress that artists should be offered protection. The conclusions speak of ’the need for preparedness in Europe to offer support to at-risk and displaced artists in both the short and the long term, through the appropriate institutional and legal frameworks’ and invite Member States to ’consider taking further measures to enhance the capacity to offer safe havens and so-called “cities of refuge” for at-risk and displaced artists from different parts of the world.’ [27] Council of the European Union (2023), Council conclusions on at-risk and displaced artists, 9260/23, 16 May 2023.
The EU’s support provided to human rights defenders is driven by the network of 140 EU delegations across the world, and by the EEAS headquarters in Brussels. The EU regularly supports human rights defenders through public diplomacy (statements), and political and human rights dialogues, and in other ways such as trial monitoring, visits in detention and financial emergency support. It also regularly raises individual cases with authorities.
But NGOs have pointed to certain shortcomings in EU actions to support human rights defenders. [28] Amnesty International (2019), Defending Defenders: An assessment of EU action on Human Rights Defenders EU delegations have established more human rights awards for human rights defenders (e.g., in Honduras and Uganda) and more public campaigns to support defenders (e.g., in Colombia and Mexico). The EU also co-organises the annual EU-NGO Human Rights Forum with the civil society organisation Human Rights and Democracy Network, gathering hundreds of defenders in Brussels together with EU and UN experts on specific topics.
The EU, in particular the EEAS and the Directorate-General for International Partnerships, also provides annual trainings for EU delegations (political and operational sections) on human rights defender protection.
The EU guidelines on human rights defenders are complemented by awareness-raising measures and EU funding. Since 1988, the European Parliament’s Sakharov Prize for Freedom of Thought has been awarded to individuals or organisations that have made an important contribution to the fight for human rights or democracy.
The EU’s financial support has been provided in particular through the European Instrument for Democracy and Human Rights, now replaced by the Global Europe human rights and democracy programme. [29] Regulation (EU) No 236/2014 of the European Parliament and of the Council of 11 March 2014 laying down common rules and procedures for the implementation of the Union's instruments for financing external action, Article 6. This Programme maintains short-, medium- and long-term holistic support for human rights defenders as a priority in the EU’s efforts to promote and protect human rights, fundamental freedoms, democracy and the rule of law around the world. The budget for the implementation of the programme is EUR 1.5 billion for 2021-2027.
The European Parliament published a landmark report on EU policies in favour of human rights defenders already in 2010, which took stock of the implementation of the EU guidelines on human rights defenders, and tabled several proposals for a more effective policy with regard to human rights defenders. [30] European Parliament (2010), Report on EU policies in favour of human rights defenders ( A7-0157/2010) In 2023, the European Parliament adopted a report on the EU guidelines on human rights defenders [31] European Parliament (2023), Report on the EU Guidelines on Human Rights Defenders (2021/2204(INI) noting that: “the overall application of the Guidelines by the European External Action Service (EEAS), the Commission and the Member States has been uneven, largely focusing on reactive measures, lacking a consistent overall implementation of the strategy and being characterised by insufficient visibility of EU action and channels of support for HRDs”.
The report highlights that a human rights defender dimension has yet to be integrated into all EU external action in a systematic and consistent manner. It also ’notes with regret the fact that many human rights defenders and their families continue to see their urgent relocation or visa requests denied’ and makes a range of suggestions on how to improve the situation. Every month, the European Parliament issues three urgency resolutions in Strasbourg, on a specific country, in which human rights defenders’ cases are mentioned. [32] For more information, see the European Parliament website for the DROI Committee publications, available at www.europarl.europa.eu/committees/en/droi/home/publications?tabCode=urgency-resolutions
In 2018, the Committee of Ministers of the Council of Europe adopted a recommendation on the need to strengthen the protection and promotion of civil society space in Europe. [33] Council of Europe, Committee of Ministers (2018), Recommendation CM/Rec(2018)11 of the Committee of Ministers to member States on the need to strengthen the protection and promotion of civil society space in Europe The appendix to the non-binding recommendation states that Member States should “provide measures for swift assistance and protection for human rights defenders in danger in other countries, such as, where appropriate, attendance and observation of trials and/or, if feasible, the issuing of emergency visas.”
Providing access to reliable avenues for human rights defenders to enter and stay on EU territory is also consonant with the 2018 Global Compact for Safe, Orderly and Regular Migration, signed by 18 of the 27 Member States, in which states committed to put in place standards and mechanisms designed to ’facilitate’ mobility across international borders.
The EU has also made clear commitments to support human rights defenders within the EU. A series of statements show that a free and active civil society is considered an essential component of a strong rule of law system,[34] For more information, see the European Commission Rule of Law Reports, available at https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/rule-law-mechanism_en promoting the use and awareness of the Charter of Fundamental rights of the European Union and a culture of value, [35] European Commission (2020), Strategy to strengthen the application of the Charter of Fundamental Rights in the EU, COM(2020)711 final, 2 December 2020, p. 10. a precondition for healthy democracies [36] European Commission (2020), Communication on the European democracy action plan, COM(2020)790 final, 3 December 2020, p. 3. , and a safeguard for citizens preventing and reacting to violations or abuses. [37] Council of the European Union, Council conclusions on strengthening the application of the Charter of Fundamental Rights in the European Union, March 2021. FRA has reported annually on civic space developments across the EU since 2018. [38] Civic space | European Union Agency for Fundamental Rights (europa.eu) All three major EU institutions acknowledged civic space pressures inside the EU in official documents:
The European Commission has launched, against Member States, infringement proceedings relevant for the protection of civic space. [42] European Commission (2022), A thriving civic space for upholding fundamental rights in the EU - 2022 Annual Report on the Application of the EU Charter of Fundamental Rights, p. 18. The 2022 European Commission proposal for an EU law against strategic lawsuits against public participation (SLAPP) refers explicitly to human rights defenders and applies to cases that have cross-border implications within the EU. [43] For more information, see the European Commission (2022), Commission tackles abusive lawsuits against journalists, Press Release, 27 April 2022, and the European Commission (2022) Proposal for a Directive on strategic lawsuits against public participation (SLAPP) | European Commission (27 April 2022). The directive’s proposal states that human rights defenders ’play an important role in European democracies, especially in upholding fundamental rights, democratic values, social inclusion, environmental protection and the rule of law’ and that they should be able to participate actively in public life and make their voice heard on policy matters and in decision-making processes ‘without fear of intimidation’.
While the European Commission’s recent proposal for a corporate sustainability due diligence directive (CSDDD) [44] European Commission (2022), Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937 does not explicitly mention human rights defenders, the amendments proposed by the European Parliament explicitly refer to human rights and environmental rights defenders. The Directive would oblige companies to engage with defenders, and Member States to ensure their safety as well as ensure structural ability to submit notifications about concerns regarding actual or potential adverse human rights or environmental impacts with respect to the companies. [45] For more information, see the European Parliament (2019), Corporate Sustainability Due Diligence, Amendments adopted by the European Parliament on 1 June 2023 on the proposal for a directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937 (COM(2022)0071 – C9-0050/2022 – 2022/0051(COD))1. The Parliament proposes references to human rights and environmental rights defenders in several recitals and articles, highlighting that:
“human rights and environmental rights defenders are on the front line of the consequences of adverse environmental and human rights impacts worldwide and in the EU, and have been threatened, intimidated, persecuted, harassed or even murdered. Companies should therefore not expose them to any kind of violence” (Recital 65a).
The EU also started providing significant EU funding for fundamental rights within the EU. This is most prominent in the current funding period: in 2020, the European Commission introduced a new funding programme for civil society in the EU, focusing on the support of democracy, fundamental rights and values, the Citizens, Equality, Rights and Values Programme (CERV). [46] European Commission, The Citizens, Equality, Rights and Values Programme CERV for example provides funds for civil society organisations [47] Call CERV-2023-CHAR-LITI. , strategic litigators [48] Calls CERV-2023-CHAR-LITI-CHARTER. and CERV-2023-CHAR-LITI-LITIGATION and whistle-blowers. [49] Call CERV-2023-CHAR-LITI-WHISTLE.
