On 21 October 2010, the Special Rapporteur on the situation of human rights defenders, Ms Margaret Sekaggya, presented to the Third Committee her report on the responsibility of non-state actors for human rights violations against defenders. The ensuing discussion highlighted disagreements among States and the Special Rapporteur on the appropriateness of assigning human rights responsibilities to non-state actors. In particular, the EU, Pakistan, and the UK argued that only States, not non-state actors, can be responsible for human rights violations, including against defenders.

On 21 October 2010, the Special Rapporteur on the situation of human rights defenders, Ms Margaret Sekaggya, presented to the Third Committee her report on the responsibility of non-state actors for human rights violations against defenders. The ensuing discussion highlighted disagreements among States and the Special Rapporteur on the appropriateness of assigning human rights responsibilities to non-state actors. In particular, the EU, Pakistan, and the UK argued that only States, not non-state actors, can be responsible for human rights violations, including against defenders.

In defending her report’s analysis that non-state actors can also be responsible for human rights violations, the Special Rapporteur referred the Third Committee to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society Promote and Protect Universally Recognised Human Rights and Freedoms (Declaration). The Declaration, which she pointedly noted, was negotiated and adopted by States,(1) not only addresses the State and human rights defenders, but extends to other organs and individuals, and thus includes non-state actors. She reminded States that the responsibility for violations of defenders by non-state actors does not exclude the responsibility of States. Indeed, States bear the ultimate responsibility under human rights law to respect, protect and fulfill human rights, which includes exercising due diligence to prevent, investigate and punish any violations by non-state actors.    

The EU’s and UK’s exclusively State-centric perspective of human rights also shaped the discussion around the obligations of one category of non-state actors: private corporations, including transnational corporations (TNCs). The questions posed by these States focused on State responsibility, including how the State can best engage with private corporations to improve the environment for human rights defenders. On the other hand, Norway asked how corporations themselves, in exercising due diligence, should consult and cooperate with human rights defenders. The Special Rapporteur also fielded questions on how and if her work harmonizes with that of the Special Representative on business & human rights, Mr John Ruggie (EU, Canada, Norway, UK).

 The Special Rapporteur declined to suggest a definitive set of measures for how States can improve the environment for human rights defenders vis-a-vis private corporations. Instead she stressed that each State should ‘look at its options’, while making certain that national laws comply with international standards, as well as urged that the Declaration be incorporated into national law. In regard to transnational corporations exercising due diligence, she recommended that they scan the environment before committing to a venture to see if the laws comply with international standards, and to ensure that mechanisms are available for redress. The TNCs should consult with human rights defenders at the initiation of a project, and inform them of possible consequences. Despite intimation by some speakers that her work was not entirely in line with that of the Special Representative on business & human rights, the Special Rapporteur maintained that her report complements Mr Ruggie’s work, though her report provides analysis and recommendations relating to human rights defenders, and does not try to comprehensively address the complex issue of business and human rights.

Switzerland, Canada, and the US also posed questions relating to the practical or legislative measures States could take to protect human rights defenders from violations from all categories of non-state actors. (2) In response, the Special Rapporteur referred States to section 34 of her report on due diligence. In relation to the Declaration, due diligence means that States should take measures to protect human rights defenders at risk, including carrying out investigations, taking legal, judicial, or administrative measures, and providing remedies when violations of human rights defenders take place. This includes penalizing non-state actors when they violate the rights of human rights defenders (HRDs).  Due diligence also requires States to implement interim precautionary mechanisms called for by international and regional human rights mechanisms.

The Special Rapporteur’s also emphasised implementing the right to an effective remedy in her opening statement, while noting the weakness in the legal framework and judicial system of States which deprives HRD’s of the tools to obtain justice. Ending impunity is essential for the security of human rights defenders, but she lamented that many governments were not doing enough to address abuses by non-state actors. Although she refrained from naming specific countries,  countries did not avoid scrutiny altogether during the interactive dialogue, since Iran was the subject of a scathing intervention by the UK delegate. (3)  

Norway also raised issues relating to monitoring and accountability mechanisms, including requesting more information on how national human rights institutions (NHRIs) could contribute to the protection of human rights defenders from violations by non-state actors . The Special Rapporteur said that national human rights institutions should investigate complaints about human rights violations committed by non-state actors whenever their mandates allow, and if they do not have the mandate to handle complaints, States should provide it to them.

Several States acknowledged that some groups, such as LGBTI (EU) and women human rights defenders (Norway) face greater and different risks from non-state actors, and asked the Special Rapportuer to elaborate on these issues. The Special Rapporteur affirmed that women need protection from non-state actors and referred to the recent grave cases in DRC, where mechanisms are not available and violations go unabated. The Special Rapporteur did not address LGBTI persons in the Third Committee, but she did comment on this issue during an NGO-organised parallel event on the margins of the General Assembly, which featured the Special Rapportuer and a Ugandan LGBTI defender. (4)  During the event, the Special Rapportuer acknowledged that non-state actors (including community members and leaders, and religious leaders) target not only defenders of LGBTI rights, but also LGBTI persons, just because of who they are. Therefore her work focuses on LGBTI individuals because of their extreme vulnerability. 

(1)The Declaration was  adopted by consensus by the General Assembly  in 1998.

(2) In her opening statement, the Special Rapporteur described the four main perpetrators that are non-state actors, (including armed groups (rebels, paramilitary, militia etc); private corporations; individuals; and the media) as well as the patterns of violence associated with them.

 (3) The UK delegate asked what the Special Rapporteur was doing to address the terrible situation in Iran regarding current human rights violations against defenders, and if the country had responded to her call for a visit. The Special Rapporteur did not answer the question.

(4) The side event, held on 21 October, was organised by the International Service for Human Rights (ISHR), Human Rights First and the World Organisation against Torture (OMCT). It was co-sponsored by Norway.