This week in an online event, 10 candidate States publicly spoke to an audience of around 200 people on their pledges as incoming Human Rights Council members for 2022 – 2024. They also faced questions on pressing human rights issues from both States and civil society organisations.
The legal analysis, prepared pro bono by leading international law firm Freshfield Bruckhaus Deringer LLP and Robert Kirkness of Thorndon Chambers on behalf of the International Service for Human Rights (Switzerland) and the Legal-Informational Centre for NGOs (Slovenia), concludes that Hungary’s ‘Stop Soros’ legislation – and specifically, section 353/A of that law – criminalises assistance to asylum seekers and ‘illegal’ migrants and thus violates EU and international human rights standards.
The analysis is intended to inform infringement proceedings brought against Hungary by the European Commission in the European Court of Justice (CJEU).
According to ISHR Director Phil Lynch, ‘the proceedings provide a landmark opportunity for the European Commission to submit, and the European Court of Justice to conclude, that European governments have a binding legal obligation to create an enabling environment for the defence of human rights’. This binding obligation arises both from EU law and from international law, including the UN Declaration on Human Rights Defenders.
Specifically, the legal analysis concludes that the Stop Soros legislation:
- violates Hungary’s obligation to establish and maintain a framework that enables human rights defenders to assist asylum seekers (such as by effectively criminalising the provision of information and assistance by defenders to asylum seekers);
- violates the fundamental rights of human rights defenders, including the rights to freedom of expression and of association (such as by effectively criminalising the building, funding or operation of a network to support asylum seekers); and
- by violating the rights of human rights defenders also violates the rights of asylum seekers themselves (such as by depriving asylum seekers of access to legal assistance and justice).
The analysis also sets out how section 353/A of the Stop Soros law is grossly disproportionate to any legitimate objective that may be purported by the Hungarian Government, being so broadly drafted as to potentially criminalise ‘any act of assistance, direct or indirect, even very minor assistance such as the distribution of a leaflet explaining the application process to an asylum seeker or indirect assistance such as the making of a donation to an NGO that does so’.
According to Lynch, ‘the effect of the Stop Soros law is both direct – criminalising aid and assistance to asylum seekers and migrants in certain cases – and indirect – having a chilling and deterrent effect on any form of asylum seeker or migrant rights advocacy, particularly in light of the breadth and vagueness of the provisions.’
The conclusions set out in the Freshfields legal analysis reflect concerns raised by the UN Special Rapporteur on Migrants who, following an official visit to Hungary in 2019, observed:
These vaguely defined ‘criminal activities’, without explicitly stated humanitarian exemptions, could be interpreted as any support or assistance provided by civil society organisations to asylum seekers… The uncertainty about the scope of application… creates a chilling effect on civil society organisations… [who] may apply self-censorship and reduce or terminate services, which further hinders asylum seekers and migrants from exercising their right to seek asylum and international protection.
Mr Lynch notes that while the case before the Court focuses on Hungary, a finding by the Court that European law incorporates an obligation to enable the work of human rights defenders, in line with the UN Declaration on Human Rights Defenders, could have significant implications for other countries. As of December 2019, according to the Migration Policy Group, 171 defenders of the rights of migrants and refugees in 13 European countries had been criminalised.
Sarah Brooks, who leads ISHR’s work to support migrant and refugee rights defenders, says: ‘This case provides an opportunity and an imperative for the Court to address the deterioration of rights in Hungary, and to unequivocally rule on the illegality of Viktor Orban’s anti-migrant and anti-civil society policies. The Court also the chance to make clear for the first time that all European states have a legal obligation to protect and facilitate the vital work of human rights defenders – and that efforts to discredit, sanction and criminalise defenders will not be tolerated.’
- Phil Lynch, Director, International Service for Human Rights at [email protected]
- Sarah Brooks, Programme Manager and Brussels Representative, International Service for Human Rights at [email protected]
Photo: Court of Justice of the European Union
It's difficult to encapsulate such a complex year in a word, but "interconnected" is one that comes to mind when reflecting on 2020. We are proud to have remained deeply interconnected with defenders and to have supported, protected and amplified their work at the national, regional and international levels. With them, the "essential workers" of our times, we strive for a 2021 full of freedom, equality, dignity and justice.
The African Union (AU) declared 2021 as the year of “Arts, Culture and Heritage: Levers for Building the Africa We Want.” The preservation of these values is inextricably linked to the protection of human and peoples’ rights.
16 organisations* share reflections on the key outcomes of the 46th session of the UN Human Rights Council, as well as the missed opportunities to address key issues and situations including pushbacks and other human rights violations faced by migrants and refugees, and the human rights situations in Algeria, Cameroon, China, India, Kashmir and the Philippines. A shortened version was delivered at the Council. Full written version below.
For many rights holders, victims and activists, the UN Human Rights Council provides the last or only opportunity to get international attention and support for their vital work towards a world that’s more fair, equal and sustainable. We need the Council to continue being credible, effective and accessible to everyone. This is only possible if States demonstrate leadership, take principled action, ensure that Council members live up to their responsibilities and expectations, and fully cooperate with the Council’s mechanisms.
The dire situation of refugees and other migrants in Greece, and elsewhere across the Mediterranean, deserves the Human Rights Council’s attention. NGOs pressed European governments today on the incompatibility between protecting defenders abroad, and criminalising them at home.
The Human Rights Council's 45th session will take place from 14 September to 6 October 2020. The Council will consider issues including reprisals, rights of indigenous peoples and people of African descent, arbitrary detention, and enforced disappearances, among others. It will present an opportunity to address grave human rights situations in States including Yemen, China, the United States of America, Saudi Arabia, Libya, the Philippines, Venezuela, Burundi and Myanmar, among many others. Here’s an overview of some of the key issues on the agenda.
Covid-19 took the whole world by surprise. Considered a health crisis at the beginning, it turned into an economic and social crisis with a general impact on the fundamental human rights and particularly on women's human rights. Women living in crisis areas are particularly affected and at risk.
The African Commission on Human and Peoples’ Rights (the African Commission) held its 65th ordinary session from 21 October to 10 November 2019 in Banjul, Republic of The Gambia. This session focused on the African Union theme: 'Refugees, Returnees and Internally Displaced Persons: Towards Sustainable Solutions to Forced Displacement in Africa.'
Over two intense weeks, 18 dedicated human rights defenders participating in ISHR’s 2019 Human Rights Defenders Advocacy Programme (HRDAP) exchanged experiences, strengthened their skills, put them into practice, and built a network of allies in Geneva and across the globe.
The African Commission on Human and Peoples’ Rights (the African Commission) held its 64th ordinary session from 24 April to 14 May 2019 in Sharm El Sheikh, the Arab Republic of Egypt. This session focused on the African Union theme: 'Refugees, Returnees and Internally Displaced Persons: Towards Sustainable Solutions to Forced Displacement in Africa.'
This session of the NGO Forum was held in Sharm El Sheikh from 20 to 22 April 2019. It was once again an important opportunity for African and international civil society organisations to network and meet to promote the protection of human rights on the continent. The theme for this session was 'Refugees, Returnees and Internally Displaced Persons: Towards Durable Solutions to Forced Displacement in Africa' in line with the African Union 2019 focus.