Council discusses report of Special Rapporteur on human rights and counter-terrorism
Sunday, 14 March 2010 17:44


SceininThe Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Mr Martin Scheinin, presented his annual report to the Human Rights Council on Monday 8 March 2010. The report focused on the protection of the right to privacy in the fight against terrorism and its erosion in the context of global terrorism. The Special Rapporteur recommended that the Human Rights Committee draft a new general comment on article 17 of the International Covenant on Civil and Political Rights (ICCPR).


Although Mr Scheinin mentioned that his latest report to the General Assembly had focused on gender mainstreaming, which proved highly controversial, States focused on new controversies related to Mr Scheinin's work. The main issue in this regard was the delay in submitting the report requested by the Council on good practices that ensure respect for human rights by intelligence agencies. Mr Scheinin explained that the Council's resolution had not triggered a budgetary allocation allowing for the holding of broad consultations in preparation of the study. A number of States asked for further clarification on this issue and Mr Scheinin stated that he saw it as his prerogative to decide on the focus of his reports. As he had decided that this year's main report would be on the right to privacy he had been unable to draft the requested report in time. The Secretariat was also called on to explain the situation and noted that it had been made clear to Mr Scheinin that the funds available would only allow for the holding of one set of consultations. Mr Scheinin also noted that he had informed the main sponsor of the relevant resolution, Mexico, of the situation. That led to a strongly worded reply from Mexico, which argued that it was not appropriate for the Special Rapporteur to simply inform the sponsor but that he should have notified the Council.


Mr Scheinin expressed concerns about the increased use of surveillance and privacy intrusive technologies, and noted that the use of full body scanners are disproportionate intrusions into privacy and also ineffective in detecting genuine terrorist threats. Mr Scheinin further stated that data protection is an under-developed area of privacy rights and encouraged the Council to develop a global declaration on data protection and date privacy, building on existing principles of data protection.


Mr Scheinin also thanked the governments of Egypt and Tunisia for their cooperation in relation to his visits there.

He noted that he would like to conduct a follow-up visit to Egypt to be able to visit detention centres and meet in private with persons accused or convicted of terrorist acts. Mr Scheinin reiterated his concerns about the use of administrative detention and the lack of release of detainees even after a release order has been given. In its comments on his mission report, Egypt stated that the report did not reflect the positive engagement that took place or the clarifications submitted by the Government. Egypt expressed concerns about the inclusion of unsubstantiated information and allegations in the report and regretted that the Special Rapporteur had not provided more guidance on the drafting of its new counter-terrorism law. While it took exception to 'some parts' of the report it expressed willingness to consider the Special Rapporteur's comments. Regarding the visit to Tunisia, the Special Rapporteur noted significant discrepancies between the law and practice and explained that the report on the visit would be presented at a later stage. Tunisia stated its commitment to constructive engagement with the Special Rapporteur and said it was attentive to his recommendations.


In the debate that followed several States commented on the thematic report on the right to privacy. The EU stated that it was a topic that merited the Council's full attention. France and Finland asked the Special Rapporteur to elaborate on what a declaration on data protection and data privacy would contain, while Pakistan (on behalf of the OIC) asked who should draft such an instrument. The Russian Federation queried whether such a declaration would also deal with non-State actors. China stated that it was ready to discuss the proposal for a declaration on data protection and data privacy while Egypt called the idea 'interesting'. Norway asked how the process could be moved forward and how it would relate to regional initiatives on the same topic. Brazil argued that article 17 of the ICCPR is adequate indirectly distancing itself from the proposed new declaration. Algeria stated that the elaboration of a general comment on article 17 should precede the examination of whether a declaration of data protection and data privacy is needed. The United States expressed outright opposition to the proposed declaration arguing that there is no need for it. It stated that while it agreed with much of the Special Rapporteur's report it was of the view that there may not be 'one size fits all' for States when it comes to privacy protection and that there is no right to data protection independent of the right to privacy.

Several States (Pakistan (on behalf of the OIC), Egypt, Iran) welcomed the Special Rapporteur's comments that racial and religious profiling is discriminatory.


Cuba expressed support for the Special Rapporteur's work on secret detention and asked if he had received all necessary information on such facilities, and whether he had been able to visit these places, in particular Guantanamo Bay. Norway asked for the Special Rapporteur's views on the role of private entities in the use of secret detention.


In his concluding comments, Mr Scheinin explained that there is a need for a separate discussion on data protection and data privacy because of emerging new challenges. He underlined that his proposal was for the development of a declaration and not new binding standards. He stated that such declaration should reaffirm existing human rights law and data protection as a crucial component of the rights to privacy. It should also contain a political commitment. In relation to the question about the role of non-State actors he expressed the view that the international treaty approach, where States bear the primary responsibility for human rights protection, may be insufficient in this area. Finally, he noted that cross-border exchanges of intelligence deserve heightened scrutiny.

Last Updated on Tuesday, 24 August 2010 17:15
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