Experts Urge States to Heed International Laws when Using Mass Surveillance to Combat Terrorism, Third Committee Hears, Approving Three Texts
Special Rapporteurs Update Delegates on Status of Justice, Law, Rights Defenders, Development, Freedom of Expression, Religion
When using mass surveillance tactics to combat terrorism, it was imperative that States complied with international human rights law, the Third Committee (Social, Humanitarian and Cultural) heard today during interactive debates with experts as it continued its discussion on the protection and promotion of human rights and approving draft resolutions on literacy and crime prevention.
Acting without a vote, the Committee adopted two draft resolutions on the rule of law, crime prevention and criminal justice in the United Nations development agenda beyond 2015 (document A/C.3/69/L.6) and the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (document A/C.3/69/L.17/Rev.1) respectively. The Committee also adopted a draft resolution on literacy for life (A/C.3/69/L.9/Rev.1), without a vote.
Delegates also heard presentations by seven United Nations experts, who outlined the progress they had made and the challenges they faced in a wide range of human rights fields, from freedom of religion to government surveillance strategies. Among emerging concerns was the issue of mass surveillance, said Ben Emmerson, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
The dynamic pace of technological change had enabled some States to secure bulk access to communications and content data, he said. Law enforcement agencies of those States could potentially open for inspection the communications of “literally every Internet user”. While combating terrorism was a public interest imperative, he cautioned, intelligence agencies must comply with international human rights law.
On a related topic, David Kaye, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, called for further work on the intersection of surveillance, privacy and expression. “Are we all adequately informed about the vulnerability of our expression online?” he asked. Calling on States to protect children’s freedom of expression on the Internet while protecting them from harm, he emphasized that “today, to be disconnected from the net is to be silenced.” It was also necessary for human rights defenders to be appropriately trained in the tools to protect themselves from surveillance.
Speaking about those fighting to protect rights, Michel Forst, Special Rapporteur on the situation of human rights defenders, drew attention to the enormous risks faced by those working to promote women’s rights and to protect economic, social and cultural rights, the rights of minorities, lesbian, gay, bisexual, transgender and intersex persons and environmental activists and those working on issues of business and human rights.
Also making presentations were Heiner Bielefeldt, Special Rapporteur on the freedom of religion or belief; Pablo de Greiff, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence; Tamara Kunanayakam, Chair of the Working Group on the Right to Development; and Gabriela Knaul, Special Rapporteur on the independence of judges and lawyers, who said rule of law and access to justice concepts needed to be integrated in the new post-2015 development framework, emphasizing that “development needs justice. There is no way around it.”
The Committee also heard the introduction of four draft resolutions related to the advancement of women, and three draft texts on the protection of children’s rights, international drug control and crime prevention and criminal justice.
Participating in today’s interactive dialogues were speakers representing Norway, Liechtenstein, Russian Federation, United Kingdom, Czech Republic, Lithuania, Ireland, Switzerland, Cuba, Belarus, United States, Morocco, Mauritania, Netherlands, Indonesia, Ecuador, Qatar, Kenya, Tunisia, China, Germany, Brazil, Iraq, Argentina, Azerbaijan, France, Senegal, Philippines, Burkina Faso, Canada, Italy, Mexico, Malawi, Egypt, Iran, Syria, South Africa, Bahrain, Maldives, Latvia, Ethiopia, Israel, Austria and United Arab Emirates, as well as the European Union delegation.
The Third Committee will reconvene at 10 a.m. on Friday, 24 October, to continue its general discussion on the protection and promotion of human rights.
Background
The Third Committee met this morning to continue its consideration of the protection and promotion of human rights. It was also expected to take action on three draft resolutions: one on social development, Literacy for Life: shaping future agendas (document A/C.3/69/L.9/Rev.1); and two on crime prevention, Rule of law, crime prevention and criminal justice in the United Nations development agenda beyond 2015 (document A/C.3/69/L.6) and United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (document A/C.3/69/L.17/Rev.1.). For background, see Press Release GA/SHC/4108 of 22 October.
Interactive Debate
MICHEL FORST, Special Rapporteur on the situation of human rights defenders, welcomed the awarding of the Nobel Peace Prize to two rights activists, Malala Yousafzai and Kailash Satyarthi. Turning to his report, he emphasized that his mandate should remain focused on the protection of human rights defenders most exposed or at risk, including those working to promote women’s rights, and to protect economic, social and cultural rights, the rights of minorities, lesbian, gay, bisexual, transgender and intersex persons and environmental activists and those working on issues of business and human rights.
Since challenges facing human rights defenders did not take place in isolation and were often accompanied by unwarranted restrictions on activists’ rights to freedom of peaceful assembly and association, he welcomed a strengthened cooperation and greater synergy with other special rapporteurs with the thematic mandates. Turning to the issue of documenting individual cases of rights infringements, he said they were at the cornerstone of his mandate. Yet he considered it crucial to also demonstrate good practices that could be duplicated and shared with other countries and regions.
“I aim to strike a balance between exposing violations and showcasing good practices that can have a multiplier effect on the protection and promotion of the right to defend human rights,” he added. He also expressed his concern over the increasing number of acts of intimidation and reprisals against human rights defenders in connection with their engagement with United Nations human rights mechanisms or regional organizations.
In the ensuing interactive dialogue, delegates asked questions about the use of innovative technologies to enhance the work of human rights defenders, country visits, gender mainstreaming and information needed to identify laws and practices aimed at restricting areas in which civil society operated. Other questions included how to combat reprisal and impunity, issues related to extractive industries and means to avoid duplication with other mandate holders.
Mr. FORST expressed his desire to enhance the use of innovative instruments, including social networks, to help to ensure good communication between stakeholders and human rights defenders, as well as regular exchanges and sharing of information. With regard to country visits, he renewed his call on Member States to issue invitations, as his predecessor was able to visit only 22 countries. Turning to technical cooperation with other mandate holders, he discussed several upcoming engagements with his colleagues from regional commissions aimed at exchanging common views, ensuring synergies and avoiding duplications.
Participating in the interactive dialogue were representatives of Norway, Liechtenstein, Russian Federation, United Kingdom, Czech Republic, Lithuania, Ireland, Switzerland, Cuba, Belarus, United States, Morocco, Mauritania, Netherlands, Indonesia and Ecuador, as well as the European Union delegation.
GABRIELA KNAUL, Special Rapporteur on the independence of judges and lawyers, introduced her report, which included details on country visits. The Millennium Development Goals had represented a unique effort to reduce poverty by setting a series of time-bound targets and indicators. Despite successful achievements, the development framework was too limited to fully account for the human experience of development. Also, the Goals were silent on the devastating effects of conflict, violence, injustice and discrimination. Noting that the rule of law and development were mutually reinforcing concepts, she underlined that the promotion of justice and the consolidation of the rule of law fostered more equitable, inclusive and sustainable development.
Turning to the post-2015 development agenda, she said the concepts of the rule of law and access to justice needed to be integrated in the new framework. Undoubtedly, access to justice was an essential component of the rule of law and, consequently, paramount to the development and construction of sustainable goals in the post-2015 agenda. In that regard, fair and effective justice systems constituted the most efficient way to ensure a sense of safety, stability and prosperity. In addition, she discussed the connection between sustainable development and the rule of law and human rights. The issues related to access to justice and justice administration should be at the centre of the development agenda, she said. Indeed, that was essential to break the vicious circle of poverty, exclusion and vulnerability. Concluding, she said failing to acknowledge the role of the justice system and international legal obligations would jeopardize the success of the post-2015 agenda. “Development needs justice,” she said. “There is no way around it.”
In the ensuing dialogue, delegates asked questions and made comments about access to justice, mechanisms to monitor justice systems, means to strengthen the rule of law and independent judiciaries.
Ms. KNAUL, replying to questions about the rule of law, stressed that there was a direct and intrinsic connection between sustainable development and the rule of law and human rights. The rule of law was a legal and political order based on the values of human rights, she said, adding that it was also a process to achieve development outcomes. Free and equal access to judicial systems, including national human rights commissions and mediation institutions, must be the indicators of access to justice, which was an essential component of the rule of law. In cases of failure to provide access, Member States would face serious consequences including corruption, impunity, lack of accountability, destruction of the rule of law and a reversal of development progress. Furthermore, she emphasized that the United Nations had guidance on measuring the rule of law and human rights, which could be applied to any legal system in the world. Echoing a statement made by a delegate of Kenya, she said States should maintain their impartiality and integrity to ensure an independent judiciary. Finally, the independence of the justice system had a central role to play to enforce the rule of law.
Also participating in the interactive dialogue were representatives of Qatar, Kenya, United States, Tunisia and Ecuador, as well as the European Union delegation.
BEN EMMERSON, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said that mass surveillance of the Internet posed a direct challenge to international law. Article 17 of the International Covenant on Civil and Political Rights included an obligation to respect the privacy and security of digital communications. However, the dynamic pace of technological change had enabled some States to secure bulk access to communications and content data without prior suspicion.
As a result, the communications of “literally every Internet user” were potentially open for inspection by intelligence and law enforcement agencies in the States concerned. While the prevention and suppression of terrorism was a public interest imperative of the highest importance, intelligence agencies must still comply with international human rights law. Merely to assert that mass surveillance technology could contribute to the suppression of terrorism failed to provide an adequate human rights law justification for its use, he said. The fact that something was technically feasible and that it may sometimes yield useful intelligence, did not mean that it was either reasonable or lawful, he cautioned.
States engaging in mass digital surveillance, he added, had so far failed to provide an evidence-based public justification for its necessity. Therefore, he recommended that States should revise and update domestic legislation to ensure consistency with international human rights law. A public legislative process would provide an opportunity for Governments to be transparent and would enable the public to appreciate the balance between privacy and security.
In the interactive dialogue following his presentation, delegates posed questions about surveillance-related issues, including a legislative process to deal with it, evidence-based justifications, measures needed at the national level to prevent its improper use and tools, including studies and analysis, to assist those involved in combating terrorism. Additional questions were posed in relation to possible remedies to online privacy rights violations and the responsibility of private companies in providing related services.
Mr. EMMERSON said the absence of precise legislation created an environment that could allow interferences with the right to privacy. Explicit and detailed laws were the only means to ensure legality, he added, as well as to enable individuals to foresee when the surveillance was taking place. He said only a public legislative process would suffice, as it would force Governments to justify mass surveillance to the public, and allow the public to make informed choices. Turning to the issue of how the extraterritorial surveillance dimension could be addressed by the international community, he said a non-discrimination obligation in Article 27 of the Covenant required States using that technology to ensure equal protection to national and non-national individual rights, inside and outside its jurisdiction. The international convention was applied extraterritorially, he added.
With regard to evidence-based justifications, he said it was not sufficient to give general and vague reasons about the duty to protect against terrorism. Instead, they should provide detailed accounts of the tangible results it was trying to reach. Public discussions to evaluate issues of intrusion were essential, he added, and that the threshold test would be that mass surveillance could be compatible on the basis of counter-terrorism justification. Turning to the United Nations role in promoting the debate and developing safeguards compatible with the Covenant, he urged States to promote specific resolution action at the General Assembly level so the issue remained at the top of the agenda. He also called for an update on general comments on the right to privacy, as it had been drafted long before the emergence of today’s information communication technologies. He reaffirmed his support for the adoption by the Human Rights Council of a new special procedure mandate specifically addressing the right to privacy, as the topic was capable of falling into areas covered by other mandates. In closing, he said that the right to privacy should not be a component in other areas, but rather have its own mandate.
Also participating in the dialogue were representatives of Switzerland, Liechtenstein, China, Germany, United Kingdom, Brazil, Russian Federation, Iraq and Ecuador, as well as the European Union delegation.
PABLO DE GREIFF, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, said that most victims of gross violations of human rights and serious violations of international humanitarian law still did not receive any reparations. The implementation gap not only affected victims directly, but also rippled across generations and entire societies, burdening them with legacies of mistrust and institutional weaknesses. Even where reparations programmes had been established, they fell significantly short.
While some countries, he added, with relatively wealthy economies had established programmes that were not particularly munificent, other countries with comparatively smaller economies had established programmes that distributed relatively large benefits. Therefore, economic factors alone did not explain either the existence of a reparation programme or the magnitude of the benefits it distributed. Suspiciously, most Governments who claimed that reparations were unaffordable did so before any such effort had been undertaken, “laying bare their unwillingness to take seriously what is in fact a matter of legal obligation”.
Urging States to place human rights at the centre of reparation programmes, he stressed that there was much room for improvements in enabling women’s access to such services. Too few victims of gender-related violations received any reparation and, when programmes existed, those tended to mainly concentrate on sexually-based violations. Further, victims and human rights defenders continued to be at risk in most countries in transition. Concluding, he urged Member States to protect the life and well-being of those who were seeking their right to reparation.
In the ensuing dialogue, delegates inquired about best practices and cooperation to raise awareness in reparations for victims, effective reparation, the role of civil society, human rights based-approaches, investigation of crimes, and suggestions for negotiations vis-à-vis States.
Mr. DE GREIFF, thanking the Governments of Uganda and Germany for hosting regional consultations, emphasized a comprehensive approach that linked justice and guarantees of non-recurrence. One of the weaknesses of each measure, he noted, was the gap between the normative level and practical experiences in the area of reparations. The weaknesses, in that regard, affected victims directly and burdened them with legacies of unredeemed mistrust, and frail notions and practices of citizenship. That was why it was essential to include reparation programmes in the post-2015 development agenda discussions. In addition, he said, there was no guarantee that each and every victim of conflict received the same benefit, which caused serious practical consequences. On gender-related violence, he stressed that very few victims received any reparation, and when they did, reparations mainly concentrated on sexually-based violations limited to rape. Concluding, he urged States to implement more comprehensive programmes to enhance access for women.
Also participating in the interactive dialogue were representatives of Argentina, China, Norway, Germany, Switzerland, Brazil and Azerbaijan, as well as the European Union delegation.
Introduction of Draft Resolutions
A representative of France introduced a draft resolution on the Intensification of efforts to eliminate all forms of violence against women and girls (document A/C.3/69/L.19).
A representative of Senegal then introduced a draft resolution on the Intensification of efforts to end obstetric fistula (document A/C.3/69/L.20).
Next, representatives of the Philippines and Burkina Faso introduced draft resolutions on Trafficking in women and girls and Intensifying global efforts for the elimination of female genital mutilations (documents A/C.3/69/L.21 and A/C.3/69/L.22, respectively).
The draft resolution on Child, early and forced marriage (document A/C.3/69/L.23) was then introduced by the representative of Canada.
A representative of Italy then introduced a draft resolution on Strengthening the United Nations crime prevention and criminal justice programme, in particular its technical cooperation capacity (document A/C.3/69/L.16), and a representative of Mexico introduced a draft on International cooperation against the world drug problem (document A/C.3/69/L.15).
Action on Texts
The Committee approved a draft resolution on Literacy for life: shaping future agendas (A/C.3/69/L.9/Rev.1), without a vote.
Also without a vote, the Committee approved two draft resolutions relating to crime prevention and criminal justice. First, it approved the text on the Rule of law, crime prevention and criminal justice in the United Nations development agenda beyond 2015 (document A/C.3/69/L.6) without a vote.
Speaking in explanation of vote after the vote, a representative of Brazil said that her delegation reiterated that the report of the Open Working Group on Sustainable Development was the main basis for the elaboration of the post-2015 development agenda.
Next, the Committee approved a draft text on the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (document A/C.3/69/L.17/Rev.1.
After the vote, a representative of Malawi, speaking on behalf of the African Group, said that she hoped there would be more co-sponsor support for the resolution.
A representative of Egypt, raising a point of order, said that the right procedures were not followed in the morning and the representatives of Bahrain and the United Arab Emirates were not allowed to exercise a right of reply to the reports made. He requested that those delegates be allowed to make their interventions.
The Chair declined that request, saying that the agenda of the afternoon included three presentations.
TAMARA KUNANAYAKAM, Chair of the Working Group on the Right to Development, recalled concerns in relation to the creation of an enabling international environment, including the need to promote the democratization of the system of international governance to increase the participation of developing countries in decision-making processes. Other concerns were related to the need to promote effective partnerships with developing countries, especially with least developed countries, as well as the need to mainstream the right to development in the policies and operational activities of the United Nations.
Detailed proposals for draft operational sub-criteria were made under the attributes of participatory human rights processes, she said, including proposals on global good governance, the removal of inequities in global decision-making and the reform of international institutions. Regarding the creation of a favourable economic environment at international levels, she noted that proposals were made on the removal of asymmetries in global trade, the elimination of tax havens and the elimination of debt.
On the Declaration of the Right to Development, she emphasized that its realization would require a synergy in actions from a variety of actors. Recalling the upcoming thirtieth anniversary of the Declaration, she hoped it would inspire Member States to move forward with a sense of urgency that the current global situation demanded to confront and eliminate the obstacles standing in the way of development, as well as to translate commitments into concrete actions, creating the conditions for the enjoyment of the inalienable right to development for all peoples.
During the interactive dialogue, questions were asked about measures that would ensure that a human rights perspective was incorporated in the post-2015 development agenda, as well as challenges to establish a legally binding instrument. Additional questions addressed repercussions of unilateral economic sanctions undermining the right to development and measures to translate the right to development from theory into practice.
Ms. KUNANAYAKAM said regarding the post-2015 development agenda, “we live in a globalized and interdependent world where a situation in one country affects the other”. Hence, the development of one country was both important and of interest to others. Levelling the political playing field was also important, she added, to ensure that everyone could participate.
On obstacles faced by the Working Group in its work, she noted the absence of mechanisms to channel information on efforts taken at the national, regional and international levels. Another obstacle was the insufficient participation of the United Nations in its work, she said, encouraging the Organization to be more active, as well as seek synergy between activities carried out in Geneva and in New York. The last obstacle she discussed was the need for additional time for the Working Group to complete its work, as the five days allocated were not sufficient.
Moving forward, she identified a need to prepare a framework to improve the efficiency of the Working Group, as well as the use of innovative methodologies and procedures to ensure a participatory process. She hoped to draw inspiration from the sustainable development goals as they had benefited from structured inputs from the United Nations, calling on the Member States to ensure synergies were developed from different and complementary processes.
Also participating in the debate were representatives of Iran, Syria, Cuba, Morocco, China and South Africa.
DAVID KAYE, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, introduced his predecessor’s report, which focused on the rights of expression enjoyed by children. He said the exercise of the right to expression implicated the ability of individuals and societies to climb out of poverty and the ability of journalists to bring the world’s attention to the stories of conflict, political unrest and disease. The Universal Declaration of Human Rights did not state that the right to freedom of expression was enjoyed only by adults, he emphasized, adding that “children are not mini-human beings with mini-human rights”. Too little had been done to give the right to freedom and opinion to children.
As communications technologies evolved, some States had adopted disproportionate restrictions on freedom of expression, particularly on the Internet, he continued. Turning to the goals for his mandate over the upcoming term, he said he would provide a detailed introduction of his objectives and methodologies during the twenty-ninth session of the Human Rights Council. He said he would maintain and build upon successful efforts already undertaken by his predecessor. Further, he said he would focus on protecting the expression of members of vulnerable groups, advancing the right to seek, impart and receive information and ensuring freedom of expression on the Internet. “Today, to be disconnected from the net is to be silenced,” he said.
Also highlighting the chilling effect of communications surveillance on the exercise of the freedom of expression, he called for further work on the intersection of surveillance, privacy and expression. Legitimate law enforcement and national security measures must not undermine the exercise of freedom of expression. It was necessary to study how technologies and laws were changing to strengthen surveillance and undermine technology. “Are we all adequately informed about the vulnerability of our expression online and on the tools to increase our protection?” he asked, calling for human rights defenders to appropriately be trained in the tools needed to protect themselves from surveillance. Concluding, he looked forward to working with all Governments to foster compliance and build capacity to implement the norms.
In the dialogue that followed, delegates asked questions about developing children’s critical thinking, empowering them online while protecting them and the fine line between use and abuse of freedom of expression, particularly in social media.
Responding to questions about how best to strike a balance with freedom of expression, Mr. KAYE said that his approach was to focus on the law, particularly Article 19 of the International Covenant on Civil and Political Rights. Any restrictions on freedom of expression must be proportionate and narrowly tailored so that they did not impinge on the right. Regarding children’s freedom of expression online, he said that it was crucial to ensure that children had age-appropriate access and could develop their own critical thinking while being protected from harm.
Participating in the interactive dialogue were representatives of Switzerland, Bahrain, Norway, United Kingdom, Maldives, Russian Federation, Lithuania, United States, Syria, Latvia, Cuba and Ethiopia, as well as the European Union delegation.
HEINER BIELEFELDT, Special Rapporteur on the freedom of religion or belief, introduced his interim report, which focused on discrimination in the workplace and the responsibility of the State and other stakeholders to eliminate such practices. The issue of religious intolerance and discrimination within employment had so far been largely underexplored. While religious manifestations at the workplace did not cause major problems, there were serious examples of resistance, confrontation and intolerance. In that regard, conflicts had resulted in employee dismissals or in other forms of sanctions and litigation.
Turning to acts of intolerance and discrimination in the workplace, he noted that combating discrimination required a comprehensive approach of tackling both direct and indirect forms of discrimination based on religion and belief. At the level of companies or other employing institutions, he said, a culture of trustful and respectful communication was needed to identify the specific needs of persons belonging to religious or belief minorities. Despite positive experiences and measures of reasonable accommodation, he emphasized that people were still met with scepticism or resistance. In that regard, States had a formal responsibility to eliminate intolerance and discrimination based on religion or belief, including in the workplace.
In the ensuing dialogue, delegates asked questions and made comments about freedom of religion or belief, successful examples in reversing intolerance, key areas to improve, protection of rights without limiting individuals, reasonable accommodation and professional support in combating discrimination, Human Rights Council resolution 16/18 and the role of international organizations and the private sector to tackle discrimination and extremism.
Mr. BIELEFELDT, replying to questions about freedom of religion or belief, stressed that a Jewish piano teacher who was fired from her job was the reason why he prepared the report. Turning to the question of male circumcision as a religious practice, he emphasized that it should not be confused with female genital mutilation.
Underlining that freedom of expression could create a resource for combating hatred and extremism, he said there must be creative measures to tackle religious intolerance. In that regard, in Sierra Leone, interreligious cooperation and communication between Muslims and Christians had a spillover impact in the workplace. On the question of the role of international organizations, private sector and trade unions, he stressed that freedom of religion or belief should be a priority for everybody. In addition, he said nobody can be immune from the issue as there was room for improvement. On the question of resolution 16/18, he said it was a turning point for important issues. Concluding, he said his next report would focus on the violence committed in the name of religion.
Also participating in the interactive dialogue were representatives of Israel, Ireland, Canada, Germany, Austria, Netherlands, United Arab Emirates, United States, Norway and United Kingdom, as well as the European Union delegation.