39/28 Draft guidelines for States on the effective implementation of the right to participate in public affairs - Report of the Office of the United Nations High Commissioner for Human Rights

GE.18-12071(E)



Human Rights Council Thirty-ninth session

10–28 September 2018

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of the

High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Draft guidelines for States on the effective implementation of the right to participate in public affairs

Report of the Office of the United Nations High Commissioner

for Human Rights

Summary

The present draft guidelines, submitted to the Human Rights Council pursuant to its

resolution 33/22, provide a set of orientations for States on the effective implementation of

the right to participate in public affairs. The draft guidelines refer to a number of basic

principles that should guide the effective implementation of the right to participate in public

affairs. Various dimensions of that right are covered, with a focus on participation in

electoral processes, in non-electoral contexts and at the international level, and

recommendations have been formulated.

United Nations A/HRC/39/28

I. Introduction

1. Participation enables the advancement of all human rights. It plays a crucial role in

the promotion of democracy, the rule of law, social inclusion and economic development. It

is essential for reducing inequalities and social conflict. It is also important for empowering

individuals and groups, and is one of the core elements of human rights-based approaches

aimed at eliminating marginalization and discrimination.

2. While the responsibility and accountability for taking decisions ultimately rests with

public authorities, the participation of various sectors of society allows the authorities to

deepen their understanding of specific issues; helps to identify gaps, as well as available

policy and legislative options and their impact on specific individuals and groups; and

balances conflicting interests. As a consequence, decision-making is more informed and

sustainable, and public institutions are more effective, accountable and transparent. This in

turn enhances the legitimacy of States’ decisions and their ownership by all members of

society.

3. The Human Rights Council has dedicated increasing attention to the issue of equal

participation in political and public affairs.1 In its resolution 33/22 on equal participation in

political and public affairs, the Council requested the Office of the United Nations High

Commissioner for Human Rights (OHCHR) to prepare concise and action-oriented draft

guidelines as a set of orientations for States on the effective implementation of the right to

participate in public affairs, as set out in article 25 of the International Covenant on Civil

and Political Rights and as further elaborated on in other relevant provisions under

international human rights law, and to present the draft guidelines to the Council at its

thirty-ninth session. The Council also requested OHCHR to facilitate open, transparent and

inclusive elaboration of the draft guidelines, including through informal consultations with

States and other stakeholders at the regional level.

4. Consequently, OHCHR organized five informal regional consultations and issued

two calls for submissions that generated responses from 65 stakeholders. 2 The process

enabled the development of the present draft guidelines, which are grounded in the inputs

received during the consultation process and informed by the examples of best practices

gathered in that context.

5. Article 25 of the International Covenant on Civil and Political Rights recognizes the

right to participate in public affairs, including the following three elements: (a) the right to

take part in the conduct of public affairs; (b) the right to vote and to be elected; and (c) the

right to have access to public service.

6. The draft guidelines start with references to a number of basic principles and

elements that, in accordance with international human rights law, should guide the effective

implementation of the right to participate in public affairs. The next focus is on the right to

vote and to be elected, the right to take part in the conduct of public affairs and

participation at the supranational level, including within international organizations.

7. In the light of the broad scope of the draft guidelines and due to the word limit, the

draft guidelines are neither comprehensive nor able to address all aspects of the right to

participate, such as the right to have access on general terms of equality to public service

positions; similarly, the references to situations pertaining to the participation of specific

individuals and groups that may face discrimination are not exhaustive. States are

encouraged to develop further guidance at the national level in relation to the participation

of individuals and groups that are marginalized or discriminated against, with a systematic

integration of a gender perspective.

1 See Council resolutions 24/8, 27/24 and 30/9. See also A/HRC/27/29, A/HRC/30/26 and

A/HRC/33/25.

2 Information on the consultation process and the submissions received are available at

www.ohchr.org/participationguidelines.

8. It should be stated at the outset that meaningful participation requires a long-term

commitment by public authorities, together with their genuine political will, an emphasis on

agency and a shift in mindset regarding the way of doing things. To assist States in making

this shift, the draft guidelines provide “a set of orientations” for how States should

effectively implement the right to participate in public affairs, as requested by the Human

Rights Council in its resolution 33/22. In the draft guidelines, it is recognized that civil

society actors, including the media, can contribute to States’ efforts to implement the

recommendations contained herein.

9. The present draft guidelines refer, when appropriate, to “rights holders”. This term

seems more apt than others to include forms of participation, encompassing initiatives that

involve all individuals affected or concerned by the decisions at stake.

10. In the draft guidelines, it is stressed that information and communications

technologies (ICTs) offer new tools for participation, expanding the space for civic

engagement, and have the potential to promote more responsible and accountable

governments. ICTs are complementary to traditional forms of participation as they create

additional opportunities for equal and meaningful participation. The draft guidelines also

recognize that, nevertheless, ICTs could negatively affect participation, for example when

disinformation and propaganda are spread through ICTs to mislead a population or to

interfere with the right to seek and receive, and to impart, information and ideas of all

kinds, regardless of frontiers.

11. The draft guidelines may contribute to the effective implementation of the

Sustainable Development Goals in all regions. In fact, the 2030 Agenda for Sustainable

Development places particular emphasis on the promotion and protection of participation of

all members of society in public affairs, in particular with its goal 16, which includes

targets to ensure responsive, inclusive, participatory and representative decision-making at

all levels (target 16.7) and to ensure public access to information and protect fundamental

freedoms, in accordance with national legislation and international agreements (target

16.10). Beyond Goal 16, the implementation and monitoring of the 2030 Agenda as a

whole rests on the meaningful participation of all actors in society, in particular those most

at risk of discrimination and of being left behind.

12. States are encouraged to translate the draft guidelines into local languages, to

disseminate them widely, including to local authorities, and to make them available in

accessible formats. The recommendations contained in the present draft guidelines should

be turned into context-appropriate measures that comply with international human rights

norms and standards.

13. Nothing in the draft guidelines should be interpreted as affording a lesser degree of

protection to the right to participate in public affairs and other human rights than that

provided under existing national laws and regulations and applicable international and

regional human rights norms and standards.

II. Basic principles underpinning the effective implementation of the right to participate in public affairs

14. The right to participate in public affairs cannot be considered in a vacuum. The

effective exercise of this right requires an environment where all human rights, in particular

the rights to equality and non-discrimination, to freedom of opinion and expression and to

freedom of peaceful assembly and of association, are fully respected and enjoyed by all

individuals.

15. The right to participate in public affairs is closely linked to the full realization of the

right of access to information, which, as part of the right to freedom of expression, is an

enabler of participation and a prerequisite that ensures the openness and transparency of,

and accountability for, States’ decisions.

16. The right to participate in public affairs requires that the life, physical integrity,

liberty, security and privacy of all members of society, including journalists and human

rights defenders, be protected at all times.

17. Moreover, the right to participate requires an environment that values and takes into

account the work and contribution of all members of society, supports and encourages their

engagement and ensures that they are empowered and equipped with the knowledge and

capacity necessary to claim and exercise their rights.

18. The following recommendations set out basic principles and related requirements

that are among the minimum essential conditions for the effective exercise of the right to

participate in public affairs.

Practical recommendations

19. States should create and maintain a safe and enabling environment that is

conducive to the exercise of the right to participate in public affairs.

(a) States should create the legal framework for giving effect to the right to

participate in public affairs by taking the steps necessary to accede to or ratify

relevant international and regional human rights treaties, and accept related

individual communications procedures. States should ensure that those treaties are

adequately incorporated in national laws, policies and practices;

(b) The equal right to participate in public affairs should be recognized,

protected and implemented in national constitutions and legal frameworks;

(c) Laws, policies and institutional arrangements should ensure the equal

participation of individuals and groups in the design, implementation and evaluation

of any law, regulation, policy, programme or strategy affecting them. Effective

remedies should be available if this right is violated;3

(d) States should ensure that relevant rights, in particular the right to

freedom of opinion and expression, including the right of access to information, and

the rights to freedom of peaceful assembly and of association are protected and

implemented in national legal frameworks. Effective remedies should be available if

those rights are violated;

(e) The legitimate and vital role of civil society actors regarding

participation in public affairs should be recognized. The independence and pluralism

of such actors should be respected, protected and supported, and States should not

impose undue restrictions on their ability to access funding from domestic, foreign or

international sources;

(f) States should encourage and create the conditions for an independent

and diverse media. They should enact legislation that promotes and protects the

freedom of the media, encourages pluralistic media services and ensures the safety of

journalists and other media workers, both offline and online;

(g) States should protect civil society actors, including human rights

defenders and journalists, in particular women human rights defenders and women

journalists, from all threats, attacks, reprisals and acts of intimidation, including

against them or their family members, associates and legal representatives, whether

offline or online. Such acts should be promptly, thoroughly and impartially

investigated, perpetrators brought to justice, and effective remedies provided. In this

context, States should exercise due diligence in preventing abuse committed by non-

State actors;

(h) The right to participate in public affairs should be recognized as a

continuum that requires open and honest interaction between public authorities and

all members of society, including those most at risk of being marginalized or

discriminated against, and should be facilitated continuously. In this context,

collaboration with civil society actors for the identification and articulation of gaps,

needs and solutions is crucial. Measures should be taken to build mutual respect,

understanding and trust between public authorities and civil society actors.

3 See para. 21 below.

20. States should recognize, protect and implement the rights to equality and non-

discrimination, and ensure inclusiveness in the exercise of the right to participate in

public affairs.

(a) States should protect the rights to equality and non-discrimination and

prohibit all forms of discrimination in their national constitution and legal

frameworks;

(b) States should adopt and implement laws, policies and programmes that

combat discrimination, including multiple and intersecting forms of discrimination, in

public and private life, online and offline;

(c) The adverse impact of discrimination, including multiple and

intersecting forms of discrimination, on the effective exercise of the right to

participate in public affairs should be recognized, in particular for women and girls,

young people, persons with disabilities, indigenous peoples, older persons, persons

belonging to minority groups, persons with albinism, lesbian, gay, bisexual,

transgender and intersex persons and other groups that are discriminated against;

(d) Adequate representation of the diversity within societies should be

reflected, as appropriate, in State institutions and governmental bodies;

(e) The necessary legislative and policy measures, including temporary

special measures, and institutional arrangements should be identified and adopted to

promote and ensure equal participation of individuals and groups that are

marginalized or discriminated against, at all levels of decision-making processes and

institutions. Such measures should be continuously re-examined and evaluated to

ensure equal participation and adequate representation of such groups in practice.

Particular attention should be given to gender balance in public institutions;

(f) When designing and implementing measures to strengthen equal

participation, it should be taken into consideration that groups that are marginalized

or discriminated against may be highly heterogeneous and, within them, individuals

do not all necessarily have the same needs or face the same challenges;

(g) States should consult with indigenous peoples, and respect and give

effect in practice to their right to free, prior and informed consent, when adopting or

implementing measures that may affect them. Consent should be sought through

indigenous peoples’ own representative institutions in accordance with their

customary laws and practices, and through procedures determined by indigenous

peoples themselves;

(h) The collection of disaggregated data and production of evidence-based

research on participation in political and public affairs should be supported as an

important element for the identification and development of adequate and effective

measures to strengthen the participation of individuals and groups that are

marginalized or discriminated against.

21. States should ensure equal and effective access to justice and effective remedies

for violations of the right to participate in public affairs.

(a) All rights holders should have access to competent judicial,

administrative or legislative authorities, or any other competent authority provided

for by the legal system of the State, to have their right to remedy determined for

violations of the right to participate in public affairs. All civil society actors, including

civil society organizations, must be able to access justice. Gender-specific barriers

preventing women and girls from accessing justice should be recognized and

addressed;

(b) Procedures to access justice and other redress mechanisms should be

fair, equitable, timely, gender-sensitive and affordable. The establishment of

appropriate and effective assistance mechanisms, including legal aid, should be

considered in order to remove or reduce financial and other barriers to access to

review procedures, especially for individuals and groups that are marginalized or

discriminated against, in particular women and girls;

(c) States should provide redress mechanisms for adequate, effective and

prompt remedies, including gender-sensitive, victim-centred and transformative

reparations, for violations of the right to participate in public affairs. States should

ensure the timely and effective enforcement of decisions taken by courts of law or any

other relevant independent and impartial bodies. Such decisions should be publicly

accessible;

(d) Adequate and accessible information should be provided to rights

holders regarding available processes and procedures for access to justice and redress

mechanisms, including when the free, prior and informed consent of indigenous

peoples has not been sought or obtained;

(e) Capacity-building and training programmes in international human

rights law for members of the judiciary and other legal professionals, in particular

regarding the right to participate in public affairs, should be promoted and facilitated

on a regular basis. Such programmes should integrate a gender perspective;

(f) States should establish and support the functioning of national human

rights institutions in line with the principles relating to the status of national

institutions for the promotion and protection of human rights (the Paris Principles);

(g) National human rights institutions should have the mandate and

resources to receive complaints and to monitor, report and act on violations of all

aspects of the right to participate in public affairs, particularly of individuals and

groups that are marginalized or discriminated against.

22. States should guarantee and give effect to the right of access to information.

(a) States should recognize, protect and implement the right of access to

information in their national constitutions and legal frameworks;

(b) Laws and regulations on the right of access to information should

comply with international human rights law, in particular by incorporating, at

minimum, the following elements:

(i) Maximum, regular and proactive disclosure of all information of public

interest held by public authorities, and a presumption in favour of access;

(ii) Any limitations should comply with international human rights law;

(iii) Procedures to request information of public interest should be free of

charge or available at reasonable cost, allow for fair and rapid processing and

include mechanisms for independent review in cases of refusal;

(iv) Protection for individuals who disclose information that they reasonably

believe, at the time of disclosure, to be true and to constitute a threat or harm

to a specified public interest (whistle-blowers) against legal, administrative or

disciplinary sanctions;

(c) States should facilitate access to information, particularly for individuals

and groups that are marginalized or discriminated against. This may include

establishing procedures for the provision of assistance, from formulation of requests

for information through to their delivery, for the purpose of promoting equal access to

information;

(d) An independent and impartial oversight mechanism should be

established and able to monitor and report on the implementation of the right of

access to information. The reports of such mechanism should be public.

23. States should promote the principles of openness and transparency in all

aspects of decision-making processes, and of accountability of public authorities for

the implementation of the right to participate in public affairs.

(a) Openness, transparency and accountability should be ensured at all

stages of decision-making by public authorities, from initial planning to budgeting,

implementation, monitoring and evaluation;

(b) States should create effective mechanisms to ensure the accountability of

non-State actors, including business enterprises, involved in the development and

implementation of public policy and other public decisions;

(c) States should promote and commit to a culture of openness and

transparency and consider, where applicable, joining the Open Government

Partnership, an international network committed to making governments more open,

accountable and responsive to the public.

24. States should empower rights holders to effectively exercise the right to

participate in public affairs.

(a) Civic education programmes should be developed and implemented as

an integral part of school curricula, in both public and private institutions. Such

programmes should be aimed at empowering rights holders, promoting a culture of

participation and building agency within local communities;

(b) Civic education programmes should include knowledge of human rights,

the importance of participation for society, and an understanding of the electoral and

political system and of various opportunities for participation, including available

legislative, policy and institutional frameworks;

(c) Targeted capacity-building and civic education programmes should be

provided for individuals and groups that are marginalized or discriminated against,

and should take into account specific challenges, such as illiteracy and language and

cultural barriers, in order to empower them to be active participants in public life.

This includes the adoption of measures promoting the engagement and collaboration

of all relevant civil society actors, including the media, and community and religious

leaders, to bring about a shift in the norms and values restricting the exercise of the

right to participate in public affairs, especially for women.

III. Dimensions of the right to participate in public affairs: forms and levels of participation

A. Participation in elections

25. Article 21 of the Universal Declaration of Human Rights highlights the role of

periodic and genuine elections in ensuring that everyone is able to participate in the public

affairs of his or her country. Article 25 (b) of the International Covenant on Civil and

Political Rights provides citizens with the right and the opportunity to vote and to be

elected at genuine periodic elections which are to be by universal and equal suffrage and

are to be held by secret ballot, guaranteeing the free expression of the will of the electors.

Elections lie at the heart of democracy, and remain the primary means through which

individuals exercise their right to participate in public affairs.

26. In addition to allowing rights holders to take part in the conduct of public affairs as

voters or candidates for election, thereby permitting participation through chosen

representatives, certain electoral processes enable direct participation, as in the case of

referendums. Genuine electoral processes are also essential to ensure accountability of

representatives for the exercise of the legislative or executive powers.

27. International law does not impose any particular electoral system and there is no

“one size fits all” model or solution to guarantee successful electoral processes. States

enjoy a large margin of appreciation in this context. However, genuine elections should be

held in an environment of general respect for and the enjoyment of human rights, on an

ongoing basis, without discrimination and without arbitrary or unreasonable restrictions.

28. ICTs may provide tools to improve participation in elections and enhance their

transparency. States considering the introduction of technological innovations in order to

improve participation in electoral processes should do so only after broad outreach and

consultations with all stakeholders, as well as comprehensive and consultative feasibility

studies, have been conducted. Digital innovations may be best introduced as a solution to

problems that might hinder the credibility of the process or the acceptance of results, not as

an end in itself.

29. The following recommendations should contribute to addressing the obstacles some

individuals and groups, in particular women, facing discrimination or marginalization may

encounter in the exercise of their right to vote and to stand for election and to ensuring

more inclusive electoral processes.

Practical recommendations

30. States should develop an effective legal framework for the exercise of electoral

rights, including with respect to the electoral system and electoral dispute

mechanisms, in compliance with their international human rights obligations and

through a non-discriminatory, transparent, gender-responsive and participatory

process.

31. States should take proactive measures to strengthen the representation and

equal participation of women, and groups that are discriminated against, in electoral

processes. These include the following:

(a) Where such measures can be shown to be necessary and appropriate,

States should introduce and effectively implement quota systems and reserved seats in

elected bodies for women and underrepresented groups, after an in-depth assessment

of the potential value of different kinds of temporary special measures, including of

their possible impact in the particular local context and of potential, unintended side

effects;

(b) When appropriate, States should adopt other temporary special

measures to increase the participation of women, including: training programmes that

build their capacity to be candidates; adjustments to campaign finance regulations

that level the playing field for women candidates; financial incentives for political

parties that achieve preset targets for gender-balance among their nominated or

elected candidates; and parental health programmes supporting women’s

participation in public and private life;

(c) When binding quotas or reserved seats are introduced, effective and

transparent mechanisms for monitoring compliance and the imposition of sanctions

for non-compliance should be envisaged.

32. Any legal or policy measure to increase the representation of women and

groups that are discriminated against should be accompanied by initiatives to

challenge discriminatory attitudes and practices, including harmful gender

stereotypes, and negative assumptions around the capacity of women, young people,

minorities and persons with disabilities to contribute to public affairs.

33. Training for journalists and other media workers should be promoted in order

to challenge gender stereotyping and misrepresentation of women in the media, and to

sensitize the media and the electorate on the need and benefits of women in leadership

positions.

34. Public-service broadcasting and media regulations should provide for equitable

opportunity for all candidates to have access to significant airtime and space in the

public media during electoral campaigns.

35. Within the confines of their electoral systems, States should ensure equal

conditions for independent candidates to stand for elections and not impose

unreasonable requirements on their candidacies.

36. States should remove unreasonable barriers to voter registration, including

onerous or burdensome administrative requirements for accessing the necessary

documentation to exercise the right to vote, particularly for women, minorities,

indigenous peoples, those living in remote areas and internally displaced persons.

37. States should take measures to protect the safety of candidates, particularly

women candidates, who are at risk of violence and intimidation, including gender-

based violence, during the electoral process.

38. States should amend their national legal provisions that limit the right to vote

on grounds of legal capacity and adopt the legal measures necessary to ensure that all

persons with disabilities, especially those with intellectual or psychosocial disabilities,

may exercise their right to vote.

39. States should take measures to ensure full accessibility for persons with

disabilities in all aspects of the electoral process by, inter alia:

(a) Guaranteeing the free expression of the will of persons with disabilities

as electors and to that end, for those who cannot exercise their right to vote

independently, and at their request, allowing assistance in voting by a person of their

own choice;

(b) Ensuring accessible voting procedures and facilities, and when full

accessibility cannot be guaranteed, providing reasonable accommodation in order to

ensure that persons with disabilities can effectively exercise their right to vote;

(c) Providing training for electoral officials on the rights of persons with

disabilities in elections;

(d) Ensuring that electoral and voting materials are appropriate, accessible

to the diversity of persons with disabilities and easy to understand and use.

40. States should consider aligning the minimum voting age and the minimum age

of eligibility to stand for elections, to encourage the political participation of young

people.

41. States should not exclude persons in pretrial detention from exercising the right

to vote, as a corollary of the right to be presumed innocent until proven guilty

according to law.

42. States should not impose automatic blanket bans on the right to vote for

persons serving or having completed a custodial sentence, which do not take into

account the nature and gravity of the criminal offence or the length of the sentence.

43. When appropriate, States should remove the practical obstacles that may

hinder the exercise of the right to vote by persons serving a custodial sentence.

44. States should facilitate the independent scrutiny of voting and counting,

including by providing access to places of voting, counting and tabulation of results.

45. Electoral management bodies should be able to function independently and

impartially, irrespective of their composition. Such bodies should be open,

transparent and maximally consultative in their decision-making and provide access

to relevant information for all stakeholders.

46. States should ensure that their legal framework provides for the right of

candidates to effectively challenge elections results and for remedies that are prompt,

adequate and effective, and enforceable within the context of the electoral calendar.

47. States should consider, on the basis of appropriate national consultations and

consultations with host States, and taking into consideration all relevant factors,

allowing citizens who are abroad or temporarily out of the country to exercise their

right to vote.

48. States should consider extending the right to vote to non-citizens after a period

of lawful and habitual, long-term residence, at least for local elections.

B. Participation in non-electoral contexts

49. In its general comment No. 25 (1996), the Human Rights Committee states that the

conduct of public affairs is a broad concept that covers all aspects of public administration,

and the formulation and implementation of policy at international, national, regional and

local levels. In that same general comment, the Committee also recognizes the right to

participate directly in the conduct of public affairs.

50. There are several ways in which the right of direct participation in the conduct of

public affairs can be exercised. Direct participation may take place when, for example,

rights holders choose or change their constitutions or decide public issues through a

referendum.

51. In general comment No. 25, the Human Rights Committee recognizes that direct

participation is engaged in by taking part in popular assemblies which have the power to

make decisions about local issues or about the affairs of a particular community, and in

bodies established in consultation with government. In addition, participation in the conduct

of public affairs can be realized by exerting influence through public debate and dialogue

with elected representatives or through the capacity of rights holders to organize

themselves.

52. The consultation process conducted in preparation for the present draft guidelines

revealed that a number of direct participation initiatives, which contribute to and

complement participation through elected representatives, are being implemented around

the world.

53. Participation in decision-making processes may happen at different levels, from

provision of information, through consultation and dialogue, to partnership or co-drafting.

These levels relate to the degree of involvement or the “intensity” of participation of rights

holders in the different steps of the decision-making process (i.e., agenda setting, drafting,

decision-making, implementation, monitoring and reformulation).

54. Modalities of participation, namely, the tools to facilitate participation, such as

websites, campaigns, multi-stakeholder committees, public hearings, conferences,

consultations and working groups, may vary in function of the level of participation and the

step of the decision-making process. While participation should be secured at all stages of

decision-making, no specific set of modalities can be recommended in all contexts.

55. The following recommendations provide States with some guidance on how to

ensure that rights holders can participate and exercise a meaningful influence in decision-

making that may affect them.

Practical recommendations

(a) Institutional framework to ensure participation in the decision-making of public

authorities

56. Formal permanent structures should be developed to ensure that participation

in decision-making processes is widely understood, accepted and routinely realized by

both public authorities and rights holders. Such structures may include a coordinating

body for participation in the Government, participation coordinators or facilitators in

ministries, joint public-civil society councils, committees or working groups and other

bodies, or framework agreements between public authorities and civil society actors to

support participation.

57. Formal participation structures should be accessible to and inclusive of

individuals and groups that are marginalized or discriminated against, including

those from disadvantaged socioeconomic backgrounds, in particular women and girls.

Specific permanent mechanisms for the participation of groups that have been

historically excluded, or whose views and needs have been inadequately addressed in

decision-making processes, such as indigenous peoples, minorities, and persons with

disabilities, should be developed.

58. To ensure that these structures and mechanisms provide meaningful

opportunities for participation, they should, at minimum:

(a) Be co-designed with relevant rights-holders;

(b) Impartially channel the views of the rights holders concerned into actual

decision-making processes;

(c) Be provided with an adequate budget and human resources with

expertise on the different groups for which participation needs to be encouraged and

enabled;

(d) Be accessible, inclusive, gender-responsive and representative.

59. When decision-making processes may have an impact on children, States

should ensure that the right of children to express their views freely and to be heard is

guaranteed, including by establishing child-friendly, age-appropriate, gender-

sensitive, inclusive and safe mechanisms for their meaningful engagement.

60. In peace processes and post-conflict and humanitarian situations, States should

consider establishing formal structures for the participation of those individuals and

groups that are or have been most affected by the conflict, such as children, young

people, minorities, persons with disabilities, internally displaced persons, refugees and

women and girls, in the development, implementation and monitoring of all relevant

legislation, policies, services and programmes. Any such structures should be designed

to give effect to the right of those individuals to make a free and informed choice on

sustainable solutions concerning them.

61. The institutional framework for participation should make it possible, at all

times, to create and use new modalities of participation, including through the use of

ICT.

62. The performance of participatory frameworks, including structures and

procedures, should be regularly evaluated and assessed in order to adjust and

improve them and build in innovative ways of and opportunities for participation, on

the basis of the needs of affected rights holders.

(b) Measures to ensure meaningful participation at different stages of decision-making

63. The following recommendations provide guidance for the relevant public

authorities of States on ensuring meaningful participation before, during and after

decision-making.

Participation before decision-making

64. Rights holders should be given the opportunity to participate in shaping the

agenda of decision-making processes in order to ensure that their priorities and needs

are included in the identification of the subject matter and content for discussion. This

can be done, for example, through online consultations, public hearings or forums, or

working groups or committees composed of representatives of public authorities and

members of the society. Where working groups or committees are established, the

relevant public authorities should adopt transparent and inclusive criteria and

processes for the representation of members of disadvantaged groups.

65. Elected representatives should play a critical role in supporting these processes,

including through their participation and their representation of the constituencies to

which they are accountable.

66. Rights holders who are directly or likely to be affected by, or who may have an

interest in, a proposed project, plan, programme, law or policy should be identified

and notified. Notification should be provided to all such rights holders in a timely,

adequate and effective manner. In addition, the participation of any other rights

holders wishing to participate should be facilitated. When decisions have countrywide

or very widespread impact, for example during constitution-making and reform

processes, everyone should be identified as potentially affected.

67. Information regarding the decision-making process should contain clear,

realistic and practical goals in order to manage the expectations of those participating.

Information about the process should include, as a minimum, the following elements:

(a) The type or nature of the decision under consideration. This includes

clarity of the subject matter, information on the rationale behind the decisions to be

made and the kind of decision(s) that should be taken at each stage of the process;

(b) The range of options to be discussed and decided at each stage, including

problems, alternatives and/or solutions, and the possible impact of their outcomes;

(c) The timelines for participation at each stage of the process, which should

be adjusted depending on the specific circumstances (e.g., according to the complexity

of the issue at stake or the number of rights holders affected by the decision) and

should provide sufficient opportunity for rights holders to properly prepare and

submit constructive contributions;

(d) The identification of public officials and institutions involved and their

capacity to deliver (i.e., their respective roles and various tasks at each stage of the

process);

(e) The identification of the public authority responsible for making the

decision;

(f) The procedures envisioned for the participation of rights holders,

including information regarding:

(i) The date on which the procedure will begin and end;

(ii) The time and venue, including information on accessible infrastructure,

of any envisaged participatory processes;

(iii) The modalities and rules of the conduct of the participatory process;

(iv) The public authority or official body to which comments or questions

can be addressed or from which additional information on the decision under

consideration can be requested, and the procedure and time frame for the

transmittal of their response.

68. Rights holders should be able to access adequate, accessible and necessary

information as soon as it is known, to allow them to prepare to participate effectively,

in accordance with the principle of maximum disclosure.4

69. Relevant information should be proactively disseminated by making it

available in a manner appropriate to local conditions and taking account of the special

needs of individuals and groups that are marginalized or discriminated against.5 This

should include:

(a) Providing information free of charge or at reasonable cost and without

undue restrictions on its reproduction and use both offline and online;

(b) Providing both technical information for experts and non-technical

summaries for the general public;

(c) Disseminating information in clear, usable, accessible, age-appropriate

and culturally appropriate formats, and in local languages, including indigenous and

minority languages. This may entail publications in Braille, easy-to-read and plain

language formats;

(d) Disseminating the relevant information as widely as possible, including

through the website of the relevant public authority or authorities if that method is

effective. Other dissemination channels may include local print media, posters,

billboards, mass media (television or radio) and other online sources;

(e) Considering adopting the method of individual notification where

appropriate and with due regard to personal data protection.

4 See para. 22 above.

5 See para. 20 above.

Participation during decision-making

70. Rights holders should be able to participate in the decision-making process

from an early stage, when all options are still open. This entails, for example, that

public authorities refrain from taking any formal, irreversible decisions prior to the

commencement of the process. It also requires that no steps be taken that would

undermine public participation in practice, for example large investments in the

direction of one option, or commitments to a certain outcome, including those agreed

with another organ of the State, a non-State actor or another State.

71. Any revised, new or updated draft versions of documents relating to the

decision(s) should be made public as soon as they are available.

72. Sufficient time for rights holders to prepare and make their contributions

during decision-making processes should be provided. This entails, for example,

ensuring that opportunities to participate do not exclusively, or in large part, fall

during periods of public life traditionally considered as holidays, such as religious

festivals, national holidays or major vacation periods in the State concerned.

73. Rights holders should be entitled to submit any information, analyses and

opinions directly to the relevant public authority, either electronically or in paper

form. Opportunities to provide comments should be easily accessible, free of charge

and without excessive formalities.

74. The possibility to submit written comments through online tools should be

combined with opportunities for in-person participation. To this purpose, States

should consider establishing, for example, multi-stakeholder committees and/or

advisory bodies and organizing expert seminars and/or panels and open plenary

sessions to allow meaningful participation in all stages of public decision-making

processes. Where such structures are established, transparent and inclusive criteria

and processes for the representation of members of disadvantaged groups should be

adopted.

75. Participatory events should be free of charge and held in venues that are

neutral and easily accessible, including for persons with disabilities and older persons.

States should also provide reasonable accommodation, as needed. Depending on local

circumstances and the decision concerned, in-person participation may be

supplemented with online tools, where relevant.

76. The weight given to contributions received through online platforms should be

equal to that given to comments received offline.

77. The technical capacities and expertise of public officials responsible for the

conduct of participatory processes should be strengthened, including in the areas of

information collection, meeting facilitation, strategy formulation, action planning and

reporting on outcomes of the decision-making process.

78. Appropriate data collection and management systems for collecting, analysing,

deleting and archiving inputs received both online and offline should be developed,

and transparency in how those systems are designed and used, and how data is

processed and retained, should be ensured.

Participation after decision-making

79. The outcome of the participation process should be disseminated in a timely,

comprehensive and transparent manner, through appropriate offline and online

means. In addition, the following should be provided:

(a) Information regarding the grounds and reasons underlying the

decisions;

(b) Feedback on how the contributions of rights holders have been taken

into account or used, what was incorporated, what was left out and the reasons why.

For example, a report can be published, together with the decision(s) made, which

may include the nature and number of inputs received and provide evidence of how

participation was taken into account. This requires that adequate time be allocated

between the end of the participatory process and the taking of the final decision.

(c) Information on available procedures to allow rights holders to take

appropriate administrative and judicial actions with regard to access to review

mechanisms.

80. Opportunities should be available for those who participated to assess the

participatory process in order to document lessons learned for future improvement.

To this end, relevant public authorities should consider conducting surveys or focus

group discussions, including through the creation of dedicated websites, by phone or

in person, in order to collect information on various aspects of participation at all

stages of the decision-making process. States should ensure that the information

collected in this context is representative of the diversity of all rights holders who

participated.

81. In order to allow meaningful participation in assessing the decision-making

process, States should provide information on the process, including the following:

(a) The number, and format, of communications used to notify rights

holders;

(b) The resources allocated to the process;

(c) The number of people who participated at the various stages of the

decision-making process;

(d) Disaggregated data on those participating, with due regard to personal

data protection;

(e) Participation modalities;

(f) Accessibility and reasonable accommodation measures.

82. Participation in the implementation of decisions made should be ensured.

Accessible and user-friendly information should proactively be disclosed at all

implementation stages. This may be achieved, for example, through the creation of

dedicated websites and/or email alerts and the organization of events, conferences,

forums or seminars.

83. When appropriate, States should consider establishing strategic partnerships

with civil society actors, while respecting their independence, to strengthen

participation in the implementation of decisions made.

84. Participation and transparency in monitoring the implementation of decisions

made should be ensured. Appropriate frameworks should be developed to evaluate

States’ performance in relation to the implementation of relevant laws, policies,

projects or programmes. The frameworks should include objective, measurable and

time-bound performance indicators, including on rights holders’ participation in

tracking implementation activities. Progress reports on implementation should be

made public and disseminated widely, including through the use of ICTs and the

organization of conferences, forums and seminars.

85. Rights holders should have access to key information to allow effective

participation in monitoring and evaluating progress in the implementation of

decisions. Information on the implementation process should include the following:

(a) The identification of the authority in charge of the implementation

process and its contacts;

(b) The resources, financial and non-financial, to be used for

implementation;

(c) Whether the implementation involves a public-private partnership, and

if such is the case, all information on the role and contacts of the private actor(s)

involved;

(d) Opportunities for participation in the implementation process.

86. Participation in monitoring and evaluation should be considered as a

continuum and include the use of social accountability tools, such as social audits,

public expenditure tracking surveys, community score cards, social audits,

transparency portals, community media and public hearings.

Information and communications technology to strengthen equal and meaningful

participation

87. ICT participation tools should be human rights compliant by design, and

participation through the use of ICTs should follow the same principles of offline

participation.6 This entails ensuring that the development and deployment of ICTs,

including new data-driven technologies for participation, is guided and regulated by

international human rights law, with particular regard to gender equality, in order to

avoid any adverse human rights impact on individuals and groups that are

marginalized or discriminated against, whether the impact is intentional or

unintentional.

88. Effective measures to close the digital divides should be developed and

implemented, especially for women, persons with disabilities, older persons, persons

living in rural areas and indigenous peoples. In this context, proactive measures

should be adopted to make ICT widely available, accessible and affordable, including

in remote or rural areas, and without discrimination of any kind. This should include,

for example, supporting the reduction and, as far as possible, the removal of social,

financial and technological barriers restricting public access to the Internet, such as

high connection costs and poor connectivity.

89. The involvement of different stakeholders, including civil society actors and

business enterprises, in the design, development and use of ICTs for participation

should be promoted. In this context, due regard should be given to the Guiding

Principles on Business and Human Rights.

90. ICTs should be used to create spaces and opportunities for rights holders to

participate meaningfully in a variety of activities that extend beyond communication

and information-sharing. Technology should provide real opportunities to influence

decision-making processes, for example with regard to submitting, and commenting

and voting on, legislative and policy proposals. Where appropriate, States should

consider providing additional, complementary offline opportunities for participation.

91. Existing ICT tools for participation should be translated into multiple local

languages, including languages spoken by minorities and indigenous peoples, and

should ensure their accessibility for persons with disabilities.

92. Media education and digital literacy programmes should be included in formal

and non-formal curricula to allow meaningful participation online. For example, these

programmes should focus, where relevant, on technical fundamentals of the Internet

and develop critical thinking to help rights holders to identify and evaluate

information and content from different sources.

93. Media and ICT education curricula should address issues related to hate

speech, xenophobia, sexism and harmful gender stereotypes, racism and any other

form of intolerance as factors that further exacerbate the marginalization and

exclusion of some individuals and groups from public life. The role of civil society

actors, including the media, in delivering positive counter-narratives online, including

against hate speech, should be supported.

94. Comprehensive and forward-looking media and ICT literacy training

programmes for public officials responsible for implementing participatory processes

should be developed and delivered in order to take full advantage of the potential of

ICTs.

6 See chap. II.

C. Right to participate in public affairs at the supranational level,

including in international organizations

95. The Human Rights Committee, in its general comment No. 25, recognized that the

right to take part in the conduct of public affairs also covers the formulation and

implementation of policy at the international and regional levels. Despite the importance of

participation at the international level, the workings of international organizations continue

to be opaque for most people.7

96. Decision-making at the regional and international levels may have a significant

effect on the realization of human rights, as such decision-making has an impact on national

legislation, policies and practices. It is thus necessary that such decisions are made in a

transparent and accountable manner, with the participation of those who will be affected by

those decisions, and in an environment respectful of public freedoms, which are

fundamental and should also be protected at the international level. Civil society actors

choosing to participate in regional and international meetings must be safe and not be

subject to acts of reprisal.

97. Those who participate at the supranational level often bring local and national

concerns to the attention of the international community, thus connecting the international

and local levels. For example, civil society actors have been instrumental in raising

awareness at the regional and international levels of the rights of groups that are

marginalized or discriminated against, and in empowering and giving voice to them. Such

participation has also contributed to challenging social norms and the organizational culture

of regional and international organizations.

98. The forms and modalities of the participation of rights holders at the international

level might vary according to the format and rules of the international forum concerned,

and the nature and phase of the process. Participation may be ensured through different

means, including the granting of observer, consultative or participatory status; advisory

committees open to relevant stakeholders; forums and dialogues; webcasting of events; and

general calls for comments. For rights holders to participate effectively at the international

level, access to information is indispensable.

Practical recommendations

99. States should respect, protect and facilitate the rights to freedom of expression

and to freedom of peaceful assembly and of association in connection with the exercise

of the right to participate at the international and regional levels.

100. Participation of civil society actors in meetings of international organizations,

mechanisms and other forums, at all relevant stages of a decision-making process,

should be allowed and proactively encouraged.

101. Access to international and regional forums should be provided without

discrimination of any kind.

102. States should end all acts of intimidation and reprisals against civil society

actors engaging or seeking to engage with international forums, and/or participating

in any related event. When acts of intimidation or reprisals take place, States should

investigate all allegations, provide effective remedies and adopt and implement

preventive measures to prevent their recurrence Understanding and addressing

gender-specific forms of reprisal is key in this context.

103. States should establish objective, consistent and transparent criteria for

expeditiously granting to civil society organizations observer, consultative or

participatory status in international organizations. Organizations having their

7 In the context of the present draft guidelines, the terms “international organizations”, “participation at

the international level” and “international meetings and forums” should be understood as including

the regional level.

requests rejected should be provided with the reasons and a means to appeal to a

higher or different body.

104. States should refrain from unduly preventing civil society actors from

obtaining accreditation with international organizations, arbitrarily withdrawing

accreditation or regularly deferring examination of requests for accreditation.

105. Permanent structures for the continuous participation of civil society actors in

international forums should be established, for example through the creation of civil

society platforms. These structures should be created through impartial, non-

discriminatory, transparent and participatory processes, and should be particularly

accessible to and inclusive of individuals and groups facing discrimination.

106. The use of innovative, cost-efficient and practical approaches, including

through the use of ICTs (e.g., webcasting, videoconferencing and other online tools),

should be encouraged in order to foster greater and more diverse participation of civil

society actors at the international level.

107. States should facilitate the timely issuance of visas for those wishing to

participate in international forums.

108. Funds should be made available to facilitate meaningful and equal

participation in international forums, particularly by women human rights defenders

and small, community-based civil society organizations.

109. The capacity of rights holders to participate meaningfully in international

forums should be strengthened, in particular among those who are less proficient in

procedures governing participation at the international level, such as grass-roots and

local civil society organizations working with individuals or groups that are

marginalized or discriminated against.

110. States should encourage international forums to develop and make widely

available a clear and transparent set of policies and procedures on participation in

order to make access more consistent and reliable. Criteria for accreditation to

meetings should be objective and broad, and registration procedures should be easy to

understand and accessible.

111. Participation of rights holders in meetings in international forums should

include access to relevant information, such as documents, drafts for comments and

websites relevant to the decision-making process, the possibility to circulate written

statements and to speak at meetings, without prejudice to the ability of international

forums to prioritize their business and apply their rules of procedure. Any criteria for

assessing the appropriateness of materials must be made public and any objection

process should be transparent and allow sufficient time for the affected civil society

organization to respond.

112. States should request international forums to proactively make available

information related to decision-making processes, through the use of ICTs or other

appropriate means, in a timely manner and in all official languages of the

international organization or forum concerned. Access-to-information policies for

international organizations should be adopted through resolutions and other

governance mechanisms and be in line with international human rights law.

113. The designation of information officers or contact persons in international

organizations charged with facilitating the flow of information to rights holders

should be encouraged.

114. States should effectively disseminate, in accessible formats and local languages,

the outcomes of decisions made at international forums, including recommendations

emanating from United Nations bodies and entities involved in monitoring the

implementation of States’ obligations under international human rights law.