Towards developing a critical and ethical approach for better recognising and protecting human rights defenders

Abstract

The Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms passed in 1998 by the United Nations General Assembly marked a milestone for the defence of human rights. This article considers some of the limitations around the concept of and term ‘human rights defenders’, and sets out some considerations for the development of a critical and ethical approach elaborating on criteria in the declaration of how to better understand and define human rights defenders through their practice. This article argues that such an approach, utilising insights from relevant critical theory, should be developed on the basis of the principles and values that recognise that although rights are universal, they are not applied everywhere in the same way or for all individuals equally. This article posits an approach in which the defender is understood, and constructed, as a relational agent situated in human rights work. Such a focus, this article argues, can not only help defenders, and those who work with them, to better understand and reflect on their experiences and improve their praxis, but can also lead to tangible improvements in the practices and policies employed for protecting human rights defenders throughout the world.

Keywords:

• agency
• critical theory
• human rights defenders
• protection
• relational approach

Acknowledgements

A former draft of this article was presented at the Research Workshop on Human Rights Defenders (15–17 May 2013), organised by the Centre for Applied Human Rights (York University), the Human Rights and Social Justice Research Institute (HRSJ) at London Metropolitan University, and Amnesty International. The feedback received in the seminar and from peer reviewers and colleagues at Protection International has been invaluable or improving the initial draft.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributors

Luis Enrique Eguren Fernández is Director of the Policy, Research and Training Unit at Protection International and Guest Lecturer and Researcher at the University of Deusto, Spain.

Champa Patel is currently Director of the Campaigns Programme at Amnesty International Secretariat, London, UK.

Notes

1. A. Belden and W. Narr, ‘Human Rights as a Holistic Concept', Human Rights Quarterly 14, no. 1 (1992): 4–5.

2. UN General Assembly Resolution 53/144, 1998, http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/53/144&Lang=E.

3. Office of the High Commissioner for Human Rights, ‘Human Rights Defenders: Protecting the Right to Defend Human Rights – Factsheet No. 29', 2004, http://www.ohchr.org/Documents/Publications/FactSheet29en.pdf.

4. Ibid., 2.

5. Ibid., 7.

6. Ibid., 8–10.

7. Semana, ‘La Ira Presidencial', Semana, 15 September 2003, http://www.semana.com/nacion/articulo/la-ira-presidencial/60643-3.

8. For example, if a national mechanism for the protection of HRD lists categories of defenders, such as ‘human rights defenders, women rights defenders, environmental defenders, etc.’ the difficulty is how to define each of the categories as people's work can move fluidly between differing identities and the risk that the process of trying to be comprehensive may in itself end up being exclusionary and restrictive.

9. As above, with no established ‘codes of conduct'; for HRDs, any attempt to define one by a state: ibid., 33; and M. Martin and E. Eguren, Protection of Human Rights Defenders: Best Practices and Lessons Learnt (Brussels: Protection International Publications, 2009).

10. J. Herrera Flores, Los Derechos Humanos como Productos Culturales: Crítica del Humanismo Abstracto (Madrid: Los Libros de la Catarata, 2005), 64.

11. J. Herrera Flores, El vuelo de Anteo. Derechos Humanos y Crítica de la Razón Liberal (Bilbao: Desclée de Brouwer, 2000), 52.

12. K. Sikkink, ‘Beyond the Justice Cascade: How Agentic Constructivism could help explain change in international politics' (Revised paper from a Keynote Address presented at the Millennium Annual Conference, Princeton, NJ, 22 October 2011), 9; see also K. Sikkink, ‘Transnational Politics, International Relations Theory, and Human Rights', PS: Political Science and Politics 31, no. 3 (1998): 516–23, http://www.jstor.org/stable/420610.

13. Ibid., 9.

14. Mark Goodale, ‘Locating Rights: Envisioning Law between the Global and Local', in The Practice of Human Rights: Tracking Law between the Global and Local, ed. Mark Goodale and Sally Engle Merry (Cambridge: Cambridge University Press, 2007), 9.

15. Ibid., 9.

16. Ibid., 36.

17. Sally Engle Merry, ‘Transnational Human Rights and Local Activism: Mapping the Middle', American Anthropologist 108, no. 1 (2006): 38–51. See also Mark Goodale and Sally Engle Merry, The Practice of Human Rights: Tracking Law between the Global and the Local (New York: Cambridge University Press, 2007).

18. Merry, ‘Transnational Human Rights and Local Activism', 39.

19. Ibid., 39.

20. Ibid., 41.

21. UN General Assembly Resolution 53/144, 1998.

22. Margaret Sekaggya, Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, 2011, http://www.ohchr.org/Documents/Issues/Defenders/CommentarytoDeclarationondefendersJuly2011.pdf (accessed 12 July 2013), 84.

23. Office of the High Commissioner for Human Rights, ‘Human Rights Defenders: Protecting the Right to Defend Human Rights – Factsheet No. 29', 2004, 8–10.

24. B. Loacker and S. Muhr, ‘How Can I Become a Responsible Subject? Towards a Practice-Based Ethics of Responsiveness', Journal of Business Ethics 90, no. 2 (2009): 273.

25. Office of the High Commissioner for Human Rights, ‘Human Rights Defenders: Protecting the Right to Defend Human Rights – Factsheet No. 29', 2004, 8–10.

26. Sekaggya, Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, 6.

27. J. Tronto, ‘An Ethic of Care', in Feminist Theory: A Philosophical Anthology, ed. A. Cudd and R. Andreasen Malden (New Jersey: Blackwell Publishing , 2005), 251–63.

28. M. Augé, A Sense for the Other (Stanford, CA: Stanford University Press, 1998), cited in P. Cloke, ‘Deliver us from Evil? Prospects for Living Ethically and Acting Politically in Human Geography', Progress in Human Geography 26, no. 5 (2002): 590–1.

29. Building on that understanding, it is then possible to also apply Levinas' argument that ‘ethics arise first and foremost out of our fundamental responsibility for the other'. For Levinas this is a form of responsibility that is ‘unconditional, beyond any “political position” and outside of any social or geographical context'. It is interesting that Levinas stresses the importance of this responsibility, being outside of any context, bearing in mind that HRDs constitute a direct corporal link between the human rights violations that are taking place and the political action that is being taken to stop them. E. Levinas, Ethics and Infinity: Conversations with Philippe Nemo (Pittsburgh, PA: Duquesne University Press, 1985), 86; E.J. Popke, ‘Poststructuralist Ethics: Subjectivity, Responsibility and the Space of Community', Progress in Human Geography 27, no. 3 (2003): 303–4.

30. Margaret Sekaggya, ‘Report of the Special Rapporteur on the Situation of Human Rights Defenders, Margaret Sekaggya, to the Human Rights Council' (Sixteenth Session, Agenda Item 3: Promotion and Protection of all Human rights, Civil, Political, Economic, Social and Cultural rights, including the Right to Development, 2010), 6, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/178/70/PDF/G1017870.pdf?OpenElement.

31. G. Sharp, Power and Struggle (Politics of Nonviolent Action, Part 1) (Boston: Porter Sargent Publishers, 1973).

32. Explored in Raghad Jaraisy and Tamar Feldman, ‘Protesting for Human Rights in the Occupied Palestinian Territory: Assessing the Challenges and Revisiting the Human Rights Defender Framework', Journal of Human Rights Practice 5, no. 3 (2013): 421–35.

33. Office of the High Commissioner for Human Rights, ‘Human Rights Defenders: Protecting the Right to Defend Human Rights – Factsheet No. 29', 2004, 9.

34. The Observatory for the Protection of Human Rights Defenders, ‘Violations of the Right of NGOs to Funding: From Harassment to Criminalisation', 2013, http://www.omct.org/files/2013/02/22162/obs_annual_report_2013_uk_web.pdf (accessed 3 February 2014); Peace Brigades International, ‘Criminalisation of Human Rights Defenders', 2012, http://www.peacebrigades.org.uk/fileadmin/user_files/groups/uk/files/Publications/Crim_Report.pdf.

35. C. Gilligan, ‘Moral Orientation and Moral Development', in The Feminist Philosophy Reader, ed. A. Bailey and C.J. Cuomo (Boston, MA: McGraw-Hill, 2008), 469.

36. J.C. Carmalt, ‘Human Rights, Care Ethics and Situated Universal Norms', Antipode 43, no. 2 (2011): 316.