Human Rights Council
17 June 2015
The Human Rights Council this evening held a clustered interactive dialogue with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, and the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai.
In his introductory remarks, Mr. Kaye expressed concern at some of the greatest threats to freedom of opinion and expression, including attacks on journalists and bloggers, attacks on political dissent and unpopular opinion, repression of civil society, attacks on the expression of members of vulnerable groups, and widespread undermining of the right to seek, receive, and impart information online. His study on digital security and freedom of opinion and expression had concluded that encryption and anonymity had become critical enablers of freedom of opinion and expression in the digital age, protecting the security and privacy not only of communications but also the information and ideas stored on devices and in the cloud. Encryption and anonymity were therefore at the heart of freedom of opinion and expression in the digital age and were essential for individuals and groups to exercise their rights.
Mr. Kiai in his opening remarks expressed regret that since his last report to the Council there had been little improvement in exercising the rights to freedom of peaceful assembly and of association. Political and economic crises had forced recourse to peaceful assemblies in many countries, while authorities had increasingly sought to stifle expressions of criticism and opposition by cracking down, often with unnecessary force, on peaceful protests; this intolerance should be a matter of concern to the Council. The Special Rapporteur also presented a thematic report which focused on the exercise of the rights to freedom of peaceful assembly and of association in the context of natural resource exploitation and endorsed the idea of a legally binding instrument for all corporations, no matter their size or geographical scope.
Oman and Kazakhstan spoke as concerned countries.
In the discussion on the right to freedom of opinion and expression, speakers underlined the importance of digital security for human rights defenders and journalists. They deplored that personal data was divulged in order to identify human rights defenders and journalists and asked how technology could guarantee their anonymity in very repressive countries. Several delegations expressed regret that the report was silent on the phenomenon of mass surveillance off and online. A concern was voiced about restrictions on the freedom of expression online imposed by certain States, particularly under disguise of terrorism, while several delegations wondered about adverse effects of encryption and anonymity on the Internet, for example on harassment and cyber bullying which relied on anonymity.
Speakers also said that peaceful assembly and association were crucial for the engagement of civil society in the context of natural resource exploitation, while inclusiveness in checks and balances promoted the role of civil society and responsibility of businesses in this context. It was the responsibility of each State to create an enabling environment in which civil society could participate in decision making processes on natural resource exploitation activities from their initial stages.
Speaking in the discussion were the European Union, Pakistan on behalf of the Organization of Islamic Cooperation, Algeria on behalf of the African Group, Norway, Portugal, Saudi Arabia, Organization of Islamic Cooperation, Paraguay, Ireland, New Zealand, Council of Europe, Algeria, Tunisia, Iran, Greece, Republic of Korea, Cuba, Indonesia, Poland, Ecuador, Venezuela, Czech Republic, Latvia, Egypt, United States, Belgium, India, France, Russia, Chile, Burkina Faso, Albania, Germany, Australia, Tajikistan, Estonia, Austria, Switzerland, Ghana, South Africa, Botswana, and China.
Azerbaijan and Armenia spoke in right of reply.
The Human Rights Council will meet at 9 a.m. on Thursday, 18 June for a full day of meetings. It will first conclude its clustered interactive dialogue with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Special Rapporteur on the rights to freedom of peaceful assembly and of association, and will then start an interactive dialogue with the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on the right to health.
The Council has before it the report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (A/HRC/29/32)
The Council has before it an addendum to the report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on Observations on communications (A/HRC/29/32/Add.1)
The Council has before it the report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association (A/HRC/29/25)
The Council has before it an addendum to the report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association on the Mission to Oman (A/HRC/29/25/Add.1)
The Council has before it an addendum to the report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association on the Mission to Kazakhstan (A/HRC/29/25/Add.2)
The Council has before it an addendum to the report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association - Observations on communications (A/HRC/29/25/Add.3)
The Council has before it an addendum to the report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association – Comments by Oman (A/HRC/29/25/Add.4)
The Council has before it an addendum to the report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association – Comments by Kazakhstan (A/HRC/29/25/Add.5)
Presentations by Special Rapporteurs on the Protection of the Right to Freedom of Opinion and Expression and on Freedoms of Peaceful Assembly and Association
DAVID KAYE, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, in his introductory remarks, expressed concern at some of the greatest threats to freedom of opinion and expression, particularly attacks including journalists and bloggers, attacks on political dissent and unpopular opinion, repression of civil society, attacks on the expression of members of vulnerable groups, and widespread undermining of the right to seek, receive, and impart information online, regardless of frontiers. He then presented the findings of his study on digital security and freedom of opinion and expression, which concluded that encryption and anonymity had become critical enablers of freedom of opinion and expression in the digital age, protecting the security and privacy not only of communications but also the information and ideas stored on devices and in the cloud. Mass and targeted surveillance, digital attacks, harassment of members of vulnerable groups, and a wide variety of digital opinion and expression had resulted in serious repercussions, including detention, physical attacks, and even killings, he noted. Encryption and anonymity were therefore at the heart of freedom of opinion and expression in the digital age and were essential for individuals and groups to exercise their rights. States should therefore be doing everything they could to promote individual digital security.
Governments had the obligation not only to respect, promote and protect the right to freedom of opinion and expression; they also had the obligation to protect the right to life. However, laws, practices and policies that banned, restricted, or otherwise undermined encryption and anonymity in the name of public order or counter-terrorism did disproportionate damage to the rights to freedom of expression and opinion. The necessity and proportionality of restrictions on encryption and anonymity had to be considered in light of this reality. The Special Rapporteur recommended that States not only protect encryption and anonymity but also promote their use as a matter of digital security. Compelling the private sector to install encryption vulnerabilities for government access would undermine everyone's security against criminal activity or hostile State action. He then strongly recommended that governments only sought access to encrypted or anonymous information through judicial process, according to regular legal rules and procedures, and targeted on specific individuals and data. Finally, he emphasized that the United Nations itself had to improve digital security to ensure secure access by individuals at risk.
MAINA KIAI, Special Rapporteur on the rights to freedom of peaceful assembly and of association, regretted that since his last report to the Council there had been little improvement in exercising the rights to freedom of peaceful assembly and of association. On the one hand, political and economic crises had forced recourse to peaceful assemblies in many countries and on the other hand, authorities had increasingly sought to stifle expressions of criticism and opposition by cracking down, often with unnecessary force, on peaceful protests. That intolerance was reflected in countries in the global north, and the global south and should be a matter of concern to this Council. This year the Special Rapporteur said he had focused on the exercise of the rights to freedom of peaceful assembly and of association in the context of natural resource exploitation which were an important means to ensure that those affected by natural resource exploitation could express their views. He endorsed the idea of a legally binding instrument for all corporations, no matter their size or geographical scope.
On his country visit to Oman, the Special Rapporteur said Oman had made tremendous strides and had relative cohesion and stability amidst a diversity of cultures and nationalities, especially considering Oman’s geopolitical location. However, the Basic Law of Oman guaranteed the right to peaceful assembly only to Omani citizens. Broadly worded provisions gave excessive discretion to authorities and created uncertainty about what actions would attract penalties. Laws and practices that empowered authorities, for instance, to hack emails and social media accounts, and repeated summons to meet with intelligence officers who had detailed information on activists’ movements, not only infringed the right to privacy but also ‘chilled’ social interaction and political activity. The Special Rapporteur was dismayed by the alleged reprisals against some civil society members who met with him during his mission and said acts of intimidation against individuals who cooperated with United Nations mechanisms were unacceptable. He regretted that the Government of Oman in its response to the report did not engage with the substantive issues of concern raised.
On his country visit to Kazakhstan the Special Rapporteur said he was struck by the immense progress the country had made in the 24 years of independence. However, he expressed his dissatisfaction with the Government’s response to an incident detailed in his report concerning the covert surveillance of civil society representatives with whom he met. The Government’s explanation was unconvincing. The Special Rapporteur urged the Government to continue to ensure that no reprisals were visited on anyone for their co-operation with him during his visit. Key observations from the visit revolved around the very limited space that existed for associations of various kinds to express dissent. Of particular concern was the executive’s role in registering political parties, the denial of rights to trade unions, and legal provisions related to the operation of public associations. The right to peaceful assembly, although guaranteed by the Constitution, was severely diminished in practice, which effectively transformed the right into a privilege. The Special Rapporteur reiterated his recommendation for a wide-ranging investigation to determine the events of 16 December 2011 in Zhanaozen.
Statements by Concerned Countries
Oman, speaking as a concerned country, said it believed in the mandate of the Special Rapporteur and it respected the Council’s mechanisms for the promotion of human rights. However, it expressed surprise for the obvious fallacies contained in his report, which were completely disconnected from reality. The Special Rapporteur had committed irregularities concerning the Code of Conduct for Special Procedures Mandate-Holders of the Human Rights Council, and was accompanied by representatives of non-governmental organizations as part of his official team without having informed the Government. He had issued a press release at the end of the visit which was supposed to express preliminary conclusions without addressing details, thus having a negative effect on the outcomes of the visit. He had relied on unofficial sources of information in preparing the report, which undermined his credibility. He had also tried to modify the programme of the visit that was previously agreed.
Kazakhstan, speaking as a concerned country, said it had carefully studied the recommendations contained in the report of the Special Rapporteur, but did not agree with all of them. Large-scale reforms had been undertaken in the country, including the establishment of a national commission that was tasked to come up with concrete modernization measures. Firstly, Kazakhstan’s legislation was in line with international norms and provided the basis for the realization of the right of citizens to free and peaceful assembly and association. Secondly, the registration of professional, religious and general associations was regulated by a unique national registration system. Registration refusals were regulated by relevant legislation. Thirdly, as for the right to free and peaceful assembly and association in the religious context, the recent summit of the world religious leaders in Astana proved that the Kazakh model of coexistence was successful. Fourthly, as for the recommendation for the change of the law on peaceful and free assembly, it was stressed that even the European Court for Human Rights could not rule clearly on that issue.
Clustered Interactive Dialogue on Freedom of Opinion and Expression and on Freedoms of Peaceful Assembly and of Association
European Union said that encryption technologies were crucial in enabling individuals, businesses and machines to communicate securely across borders and compromised encryption could not be kept secret. Peaceful assembly and association were crucial for the engagement of civil society in the context of natural resource exploitation. The European Union inquired about ways to address the worrying tendency of restricting foreign funding of civil society in some countries. Pakistan, speaking on behalf of the Organization of Islamic Cooperation, expressed regret that the report was silent on mass surveillance offline and online and said that individuals should exercise their right to peaceful assembly and association within the lines of the law. Algeria, speaking on behalf of the African Group, stressed the obligation of States to protect their citizens from the threat of terrorism and any interference in their means of communication. There was indeed a need to create an environment for individuals to exercise their right to peaceful assembly and association, to be consulted and give prior consent, and to ensure that large companies fully respected international rules and human rights. Norway underlined the importance of digital security for human rights defenders and journalists and asked how States could best ensure that they had access to secure communication. Inclusiveness in checks and balances promoted the role of civil society and responsibility of businesses and Norway asked for examples of good cooperation between States, civil society and companies in the context of exploitation of natural resources.
Portugal said freedom of expression and of peaceful assembly were at the core of human rights, and noted that they faced important challenges around the world. Portugal asked how individuals at risk could access internet protection tools. Saudi Arabia said freedom of expression could be restricted in the view of protecting unity. Saudi Arabia was one of the best digitally connected countries, and necessary measures were in place to preserve State security and stability. The Special Rapporteur had gone beyond his mandate with this report. Organization of Islamic Cooperation said all persons were free to have opinions under legitimate restrictions, and that freedom of expression was guaranteed by Islam. Member States should apply all provisions from the Covenants to ensure that freedom of expression was appropriately restricted, for example to avoid incitement to hatred. Paraguay said access to online activities should not be undermined, and the international community should reach an agreement to ensure the protection of human rights online. Paraguay agreed that the right to free and prior consent should be protected for indigenous communities.
Ireland said the Special Rapporteur’s report provided a valuable analysis of how encryption and anonymity in digital communications could facilitate and enable the exercise of the rights to privacy and freedom and opinion and expression. Ensuring a safe and enabling environment for civil society organizations was crucial for addressing the concerns relating to economic growth. New Zealand voiced concern over the inappropriate imposition of necessity and proportionality as “strict tests” to be applied to the right to privacy. That was not established international law. The conclusions reached by the Special Rapporteur went beyond the source material. The proposition that “all measures” should be avoided by States was not a realistic or pragmatic suggestion, and was not consistent with international law. Council of Europe noted that the rights to freedom of expression and to peaceful assembly and association were the key elements of democracy. International organizations representing journalists had reported many violations to the Council of Europe, which then created several instruments to prevent those violations, such as the online “rapid reaction” alert system, and the Venice Commission Joint Guidelines on Freedom of Association. Algeria shared the Special Rapporteur’s view that practices in connection with the exploitation of natural resources could abrogate the right to peaceful assembly and association. In that respect, it would be useful to adopt a national and international legal framework which would require companies to respect universally recognized human rights norms.
Tunisia said that freedom of opinion and expression was enshrined in its Constitution and asked the Special Rapporteur about the links between the right to anonymity and denial of justice and undermining of democracy. Iran expected that the Special Rapporteur on freedom of expression would explore in his report the role of intelligence corporations in collecting, storing and analysing vast amounts of data, particularly in the light of close links between information technology, corporations and intelligence agencies. The role of multinational corporations in infringing on State sovereignty in relation to exploitation of natural resources should be properly addressed. Greece said it was actively participating in the discussions in the framework of the European Union Action Plan on Human Rights and Democracy 2015-2019, with concrete proposals in the area of promoting freedom of expression online and offline. Its policies and laws on the protection of data were very much in line with the recommendations contained in Mr. Kaye’s report. Republic of Korea said it was pursuing efforts to preserve the Internet as an open and secure space for all, ensuring the free exchange of ideas. It must be acknowledged that encryption and anonymity on the Internet might produce some adverse effects, for example in harassment and cyber bullying which relied on anonymity.
Cuba said regulation of encryptions and anonymity did not constitute per se a violation of freedom of expression. Cuba agreed on the necessity to restrict the collection of natural resources by transnational companies and called for the adoption of an international legally binding instrument on this topic. Indonesia said the nature of online expression was different that offline, as irresponsible behaviour was easier. Indonesia believed therefore that the protection of anonymity and encryption should be conducted after carefully considering the nature and extent of what the Internet could provide. Poland was particularly worried at restrictions on the freedom of expression online imposed by certain States, particularly under the disguise of terrorism. Poland agreed that natural resources exploitation processes by transnational corporations should be fair, transparent and accountable. Ecuador underlined the importance of the right for journalists to keep sources confidential. With regard to extracting activities, Ecuador recognized the importance of the rights of indigenous people to prior and informed consent.
Venezuela said that the lateness of the addendum to the Special Rapporteur’s report severely limited the dialogue and asked that it be provided. The acts of violence during 2014, which aimed to overthrow the President of Venezuela, had been used to portray Venezuela as a country that did not respect the right to free and peaceful assembly and association, which was not the case. There was no censorship and no journalist was persecuted. The Government would always work to protect all human rights. Czech Republic agreed that encryption and anonymity provided the privacy and security necessary for the exercise of the right to freedom of opinion and expression in the digital age. It also agreed that States should create an enabling environment in which civil society could participate in decision making processes on natural resource exploitation activities from their initial stages. Latvia was committed to ensuring the full enjoyment of freedom of expression and other human rights on the Internet and through connection technologies around the world. States should adopt policies of comprehensive protection and non-restriction and ensure that any restrictions imposed met the requirements of legality, necessity, proportionality and legitimacy. Egypt concurred that in some cases businesses could potentially wield enormous power and that binding obligations for corporations should be negotiated to set forth norms for business entities in the field of human rights. In a world of widespread terrorism, the question remained how to ensure that encryption and anonymity in digital communications were not misused.
United States was in full agreement with parts of the analysis offered in the report by Mr. Kaye and said that human rights standards must lead the action of States to promote the anonymity for human rights defenders and discourage encryption and anonymity for malicious use. What good practices demonstrated good collaboration between businesses and States on peaceful assembly and association? Belgium asked how to guarantee that the encryption as called for by the Special Rapporteur would not turn against citizens, particularly in cases where they did not have access to their encrypted data. Belgium was preparing its national plan on human rights and companies which would refer to freedom of peaceful association and assembly and the principle of reasonable diligence which would oblige companies to respect human rights.
DAVID KAYE, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, said his report contained examples of good practices on how to protect access to encryption and anonymity. Regarding the reduction of the risks of reprisals and access to these tools by human rights defenders, journalists and activists, he reiterated his view that access to United Nations human rights mechanisms had to be encrypted and allow anonymity. Anonymity could be abused, but it was a strong tool for human rights defenders and activists. Access to encryption and anonymity was critical for a variety of groups to communicate, but could also be used for criminal activities. The report assessed security requirements and provided guidance on restrictions that could legitimately be applied. Encryption and anonymity were crucial tools and should be promoted by States, including those engaging in mass internet surveillance.
MAINA KIAI, Special Rapporteur on the rights to freedom of peaceful assembly and of association, thanked the Government of Kazakhstan for its cooperation during the visit and for taking the report in a constructive way. As for the comments made by representatives of Oman, he said he was a bit surprised because he believed that the Government had been informed about the composition of the officials visiting the country, as well as on all other aspects of the visit. He noted that Oman’s response was about procedures rather than about the content of the report. The Government of Oman should take the content of the report seriously and in a constructive manner. Often domestic laws fell short of international human rights standards, and Oman should look at its laws in that way. Defensiveness would not help.
Clustered Interactive Dialogue on Freedom of Opinion and Expression and on Freedoms of Peaceful Assembly and of Association
India took note of Mr. Kiai’s report in which he proposed that it was necessary to have legislation in place to regulate exploitation of natural resources and asked what could be alternatives to voluntary guidelines and commitments of companies, which the Special Rapporteur deemed insufficient. France deplored that personal data was divulged in order to identify human rights defenders and journalists and asked how technology could guarantee freedom of expression for human rights defenders in very repressive countries. It was the responsibility of each State to consult with its population and involve them in all environmental decisions, for which access of citizens to information was crucial. Russia did not understand the link between the functioning of extractive companies and the mandate of the Special Rapporteur on freedoms of peaceful assembly and of association. The Special Rapporteur on freedom of expression should deal with real problems of freedom of speech and should focus his attention to the situation in Ukraine and provide an objective assessment of the situation of mass media there. Chile said that ensuring freedom of expression online was a concrete challenge. Information and communication technologies were a valuable mean to achieve this and anonymity of those expressing their opinion on the Internet was crucial. Chile was committed to the non-application of anti-terrorist laws on indigenous peoples.
Burkina Faso said freedom of expression was crucial, but it was necessary to establish tools to control abuses of freedom of expression online. Burkina Faso had taken a series of measure in that regard. Albania noted with concern the growing trend of abuse of modern technologies, and recognized the urgent need for additional efforts required to promote online security. Albania said States should facilitate the right to freedom of assembly in the context of natural resources exploitation. Germany encouraged the use of encryption technology and did not intend to restrict the availability of encryption products. Germany asked the Special Rapporteur to elaborate on how online restrictions could be justified to combat criminality. Australia said the reference to extraterritorial application of human rights obligations by the Special Rapporteur on freedom of expression did not reflect current views and discussions among States. Australia also did not agree with the Special Rapporteur’s recommendation to create a legally binding instrument on human rights and businesses, and believed that efforts should be placed on implementing the Guiding Principles.
Tajikistan said it followed a policy that aimed that all citizens had an opportunity to express themselves. The State did not intervene with the functioning of civil society organizations and associations unless they contravened national laws and international standards. Estonia noted that privacy played a central role in ensuring that the right to freedom of opinion and expression would be guaranteed. However, it could not agree that some countries would register all Internet users, SIM card holders and VPN or encrypted communication users. Estonia noted that the convening of spontaneous assemblies was a constitutional right. Austria said that an open and secure Internet had to be counted among the leading prerequisites for the enjoyment of the rights to freedom of opinion and of expression. As for the right to peaceful assembly and association in the context of exploitation of natural resources, Austria asked the Rapporteur to elaborate on good practices in the usage of consultation mechanisms. Switzerland welcomed the focus on the right to free assembly and association in the context of exploitation of natural resources. It was committed to the establishment of rules for businesses that would oblige them to observe human rights. As for the freedom of opinion and expression in the digital age, Switzerland asked about good practices in achieving a balance between security and exercise of freedom of opinion and expression.
Ghana shared conviction that any bill of human rights without freedom of expression, including press freedom, was not worth the paper on which it was written. Its State media was free from Governmental interference and defamation was decriminalized. Freedom to peaceful assembly and association was guaranteed and public demonstrations enjoyed police protection, which required a prior notice by organizers. South Africa shared the concerns on the unprecedented abuses of human rights of communities in which transnational corporations of extractive industries operated for which they must be held accountable. The right to privacy should not be unduly subdued to the interests of security and the right to freedom of expression and opinion had permissible limitations and that beyond certain thresholds could constitute incitement to hatred. Botswana said that encryption and anonymity gave practical application to the freedom of expression and must be carefully balanced against security concerns. Botswana said that in many cases individuals and communities were denied their right to peaceful assembly in relation to their concerns on the use of revenues generated from natural resources exploitation, which must be transparent, fair and accountable. China said that freedom of expression was guaranteed by the law and China did not accept the claim in the report on the limitations on the Internet. It remained free, open and orderly. Citizens also enjoyed freedom of assembly and association in accordance with the law; citizens must not undermine national and collective interests in the exercise of this right.
Right of Reply
Azerbaijan, speaking in a right of reply, said Azerbaijan continued to suffer from the aggression by Armenia, and regretted that the Armenian delegate had objected to the Special Procedures making reference to the situation. Armenia had not taken any steps forward to withdrawing its troops from Azerbaijan, in contradiction with Security Council resolutions on this matter.
Armenia, speaking in a right of reply, said that Azerbaijan was trying to politicise the work of the Council and misuse the findings of the report without any attempts to face reality and address the problems of those who were held hostages to Azerbaijan’s politics, such as internally displaced persons. Armenia called on Azerbaijan to stop misleading the international community.
Azerbaijan, speaking in a second right of reply, invited the Armenian delegate to first answer Azerbaijan’s questions and then pose his own. It was recalled that the grand chamber of Human Rights ruled on a case of an Azeri national who had been forcibly displaced from Nagorno-Karabakh. Due to its aggression on the sovereign territory of Azerbaijan, Armenia bore full responsibility as the occupying power on the territory of Azerbaijan.
Armenia, speaking in a second right of reply, said that Azerbaijan was not interested in human rights and that the documents cited in the statement of that delegation could not decide the status of Nagorny Karabakh. It was Azerbaijan which daily violated the provisions of the peace agreement by shelling the territory of Nagorny Karabakh.
For use of the information media; not an official record
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