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EU-NGO Human Rights Forum 2021
Thematic panel:
Exploring the wide-ranging impacts of the Covid-19 pandemic on fundamental freedoms

Statement Birgit Van Hout

UN Human Rights (OHCHR) Regional Representative for Europe

8 December 2021

I would like to start by saying that I am very humbled to be in the company of the other panelists, and I would like to express my appreciation and gratitude for your work, because you are holding the torch of human rights and as long as you remain committed, the flame of human rights cannot be and will not be extinguished.

I would plead for a broad definition of human rights defenders: there are of course the dedicated men and women leading the human rights movement at national, regional or international level. But I am also thinking of students turned environmental activists, artists standing up for human rights, political dissidents, faith-based leaders working with detainees, the civil servant in Afghanistan trying to do the right thing, or the local volunteer supporting the homeless family around the corner here in Brussels.

While we do not track restrictions systematically, the overall trend we have observed matches the testimonies we have heard today. In some countries, restrictions on fundamental freedoms have been used to silence, criminalize or arbitrarily detain human rights defenders. In others, states of emergency have been instrumentalized to prevent the access of journalists and non-governmental organizations to certain areas.

This is part of a larger trend of shrinking space for civil society. Globally, we are seeing a negative narrative about the work of civil society arise, or sometimes exploited for political gain. In this fertile ground, activists are denigrated and female human rights defenders are particularly targeted with hate speech and stigmatization. The closing of civic space, the stifling of dissent, and the undermining of human rights defenders in various ways poses a great challenge from the local level to multilateral forums.

I would like to restate the basics and then turn to what we can do. First and foremost, the responsibility to respect, protect and fulfill human rights lies with States and accountability for failing to do so rests with them. States must further create an environment in which all human rights can be realized. What we are seeing today is that where such an enabling environment existed, it has come under serious pressure, and where the environment was already restricted, it has come under full blown attack.

The underlying assumption of restrictive measures appears to be that public freedoms are an obstacle to an effective crisis response. Yet, the opposite is true: crisis response and public freedoms are complementary. We need a plurality of voices to overcome crisis. This is not only a human rights imperative; it also leads to better outcomes.

Under international human rights law, freedom of movement, freedom of expression and freedom of peaceful assembly can be restricted to protect public health, even in the absence of a State of emergency. However, restrictive measures must be time-bound and may never result in the suppression of human rights activism.

International law imposes strict compliance tests. Any measure adopted must meet the conditions of legality, necessity, proportionality and non-discrimination, and since such measures limit the exercise of human rights, they must be interpreted strictly.

The fact that restrictions are imposed by law, for example, is not in itself sufficient. The law must not be arbitrary or unreasonable. This is what makes the difference between “rule by law” and “rule of law”. The proportionality test further requires that restrictive measures use the least intrusive method to accomplish a legitimate aim. The judiciary, for example, should refrain from applying excessive sanctions and should not engage in hasty or summary trials.

What can we do? We are working to strengthen national protection systems by supporting independent national human rights institutions. In some countries, like Mexico and Colombia, our office also supports national mechanisms that specifically address threats and attacks against defenders and journalists. In the Middle East, we support women’s rights networks.

We also use the voice of the High Commissioner to condemn human rights violations against defenders. For example, our High Commissioner has criticized overly broad definitions of terrorism under which civil society organizations are labelled as "terrorist organizations.” I would like to encourage you, if you are not already in contact with our office in your country or region, to establish contact and share your concerns.

I would also like to encourage you to use the international human rights protection system to the fullest: the special procedures and universal periodic review of the Human Rights Council, the treaty bodies and the Secretary-General’s annual report on reprisals. Even though their findings and recommendations may not be legally binding, they carry important political weight.

From our side, we commend the EU and Frontline Defenders for the efforts they are undertaking, including through the Protect Defenders Programme. Partnerships and alliances are essential in creating more space for civil society, and meetings like this allow participants to develop and strengthen networks, which are a key element of protection. Events like this one also broaden the public support base and boost self-confidence.

Let me briefly address also the question of data collection in the context of the covid-19 response. The collection of sensitive data has caused concern. Systems for health-related data should only capture data necessary for the specific purpose of managing the COVID-19 pandemic. This should be closely monitored and transparency for concerned individuals must be ensured. Data collected by health care providers must in principle not be used by other government agencies. In case of vaccination of undocumented migrants, for example, firewalls must be erected between health care providers and law enforcement agencies.

Because of their invasiveness on the right to privacy, individual surveillance, contact tracing and individual movement tracking should be tightly regulated, with data used only as strictly necessary to meet public health needs. In accordance with the three-part test for restrictions on freedom of expression and, in particular the necessity part of that test, surveillance should be conducted only on a limited and targeted basis and in a manner which strikes an appropriate balance. Untargeted or “mass” surveillance is inherently disproportionate and constitutes a violation of the rights to privacy and freedom of expression. States should always be fully transparent about their systems of surveillance, including the legal and policy framework for this.

Many countries have laws governing alleged “fake news” and the COVID-19 pandemic has seen a further tightening of censorship in several countries, along with arbitrary arrest and detention. While Governments may have a legitimate interest in controlling the spread of misinformation, this again must be proportionate and protect freedom of expression. If not, a dangerous atmosphere of self-censorship may be created.

Internet shutdowns have also become a widespread phenomenon, and this at a time when access to information and to communication is vital. At the end of her mission to West Africa last week, our High Commissioner highlighted how internet shutdowns affect many rights, not only freedom of expression, but also people’s rights to livelihoods, to access educational resources, health information and much more. It is essential, therefore, to preserve open communications in periods of crisis. We are following this closely and the High Commissioner will issue a report on internet shutdowns in 2022.

In his “Common Agenda”, UN Secretary-General Antonio Guterres has emphasized the importance of trust to build resilience in society. But where does trust come from? It comes from meaningful participation. In this, the voices of youth and underrepresented communities are key, yet often go unheard. Thus, meaningful, inclusive and safe participation channels, online and offline, are a good investment in overcoming the crisis and building back better. I stand ready to answer any further questions you may have. Thank you.