8 International and regional Instruments on Free Speech and Expression

Prof. Abhishek Sudhir

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1. Learning Outcomes

The purpose of this chapter is:

  • To give the students an overview of the internationally recognized components of an individual’s right to freedom of speech and expression;
  • To help the students understand the manner in which the right to freedom of speech and expression is protected by some of the major international and regional instruments that have been passed by a majority of nations around the world.

2. Introduction (Voice Over)

The right to free speech and expression forms the basis for the democratic form of government which is present in a majority of the countries of the world. The importance of this right has not gone unrecognized in non-democratic regimes and the right has been made available in a more restricted form. This module seeks to acquaint students with some of the international and regional instruments that have reaffirmed the importance of the right to free speech and expression.

3.1 International Instruments

3.1.1 Universal Declaration of Human Rights (1948)

The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General assembly on 10th December 1948 with a vote of 48 in favour and none against. The declaration though in itself is said to be non-binding, it has arguably attained the status of customary international law and is binding, albeit indirectly. The declaration along with the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols are collectively referred to as the International Bill of Human Rights.

Article 19 of UDHR stipulates that:

Everyone has the right to the freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

3.1.2 International Covenant on Civil and Political Rights (1966)

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and has been in force from 23 March 1976. At present, 168 countries are a party to it and 74 countries are signatories. The declaration is monitored by the United Nations Human Rights Committee which regularly audits the status of the implementation of declaration in different nations.

Article 19 of the ICCPR stipulates that:

  • Everyone shall have the right to hold opinions without interference.
  • Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or    in    print,     in     the    form    of     art,    or    through     any    other     media    of    his      choice.
  • The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
    • (a) For respect of the rights or reputations of others;
    • (b) For the protection of national security or of public order (ordre public), or of public health or morals.”

3.1.3 The Johannesburg Principles on National Security, Freedom of Expression and Access to Information

The declaration consists of 22 principles adopted by a group of experts in international law, national security, and human rights at Johannesburg on 1st October 1995. The Principles were passed with an intention to amplify article 19 of the International Covenant on Civil and Political Rights and simultaneously balance issues concerning national security with the freedom of expression. The Principles are based on international and regional law and standards relating to the protection of human rights, evolving state practices and the general principles of law recognized by the comity of nations. The principles have been endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, in his reports to the 1996, 1998, 1999 and 2001 sessions of the United Nations Commission on Human Rights, and referred to by the Commission in their annual resolutions on freedom of expression every year since 1996.

Principle 1 of the declaration seeks to protect the freedom of opinion, expression and information:

Principle 1: Freedom of Opinion, Expression and Information

  • (a) Everyone has the right to hold opinions without interference.
  • (b) Everyone has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his or her choice.
  • (c) The exercise of the rights provided for in paragraph (b) may be subject to restrictions on specific grounds, as established in international law, including for the protection of national security.
  • (d) No restriction on freedom of expression or information on the ground of national security may be imposed unless the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest. The burden of demonstrating the validity of the restriction rests with the government.

Principle 1.1: Prescribed by Law

  • (a) Any restriction on expression or information must be prescribed by law. The law must be accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful.
  • (b) The law should provide for adequate safeguards against abuse, including prompt, full and effective judicial scrutiny of the validity of the restriction by an independent court or tribunal.

Principle 1.2: Protection of a Legitimate National Security Interest

Any restriction on expression or information that a government seeks to justify on grounds of national security must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest.

Principle 1.3: Necessary in a Democratic Society

To establish that a restriction on freedom of expression or information is necessary to protect a legitimate national security interest, a government must demonstrate that:

  • the expression or information at issue poses a serious threat to a legitimate national security interest;
  • the restriction imposed is the least restrictive means possible for protecting that interest;

3.1.4 International Convention on the Elimination of All Forms of Racial Discrimination (1969)

The International Convention on the Elimination of All Forms of Racial Discrimination was adopted and opened for signature by the United Nations General Assembly on 21 December 1965 and entered into force on 4 January 1969. At present, it has 87 signatories and 177 parties. The convention is unique in certain aspect as it includes in itself an individual complaints mechanism, effectively making it enforceable against its parties. The Convention also requires regular reporting as to its implementation by party states to the Committee on the Elimination of Racial Discrimination but this has not really been effective as many parties do not report effectively, with some not reporting for decades. The convention in its article 5 protects the freedom of opinion and expression.

Article 5 – In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

  • The right to freedom of thought, conscience and religion;
  • The right to freedom of opinion and expression;

3.1.5 Convention on the Rights of the Child (1989)

The United Nations Convention on the Rights of the Child (UNCRC) seeks to set out the civil, political, economic, social, health and cultural rights of children. The convention opened for signature on 20 November 1989 and came into force on 2 September 1990. At present it has 194 parties and 140 signatories. Article 13 of the Convention protects the freedom of expression.

Article 13

  1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.
  2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
  •  For respect of the rights or reputations of others; or
  •  For the protection of national security or of public order (ordre public), or of public health or morals.

3.1.6 General comment No. 34 on Article 19 of UDHR

General Comments are clarification issued by the concerned authorities from time to time so as to fill in any lacunae and help in better understanding of particular provision of international instruments with regards to their scope and applicability. General Comment No. 34 has replaced General Comment No. 10, also on Article 19, which was adopted by the United Nations Human Rights committee in 1983. The General Comment 34 has explicitly recognized a general right of access to information within Article 19 of UDHR.

Para 9 of General Comment states the following:-

Paragraph 1 of article 19 requires protection of the right to hold opinions without interference. This is a right to which the Covenant permits no exception or restriction. Freedom of opinion extends to the right to change an opinion whenever and for whatever reason a person so freely chooses. No person may be subject to the impairment of any rights under the Covenant on the basis of his or her actual, perceived or supposed opinions. All forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature. It is incompatible with paragraph 1 to criminalize the holding of an opinion. The harassment, intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of article 19, paragraph.

Para 10 of the General Comment states the following:-

Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express one’s opinion necessarily includes freedom not to express one’s opinion.

Para 11 of the General Comment states the following:-

Paragraph 2 requires States parties to guarantee the right to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless of frontiers. This right includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others, subject to the provisions in article 19, paragraph 3, and article 20. It includes political discourse, commentary on one’s own and on public affairs, canvassing, and discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It may also include commercial advertising. The scope of paragraph 2 embraces even expression that may be regarded as deeply offensive, although such expression may be restricted in accordance with the provisions of article 19, paragraph 3 and article 20.

3.2 Regional Instruments

3.2.1 Convention for the Protection of Human Rights and Fundamental Freedoms

The Convention for the Protection of Human Rights and Fundamental Freedoms is also known as the European Convention on Human Rights (ECHR). All Council of Europe member states are party to the Convention. The convention is a breakthrough as it provides for a European Court of Human Rights (ECtHR) decisions of which are binding over national courts and can be approached directly by a citizen of any of the member state. A transnational court passing binding judgment has made the convention highly effective and most of the member states adhere to it strictly. The convention in its article 10 protects the freedom of expression.

Article 10 – Freedom of expression

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

3.2.2 American Convention on Human Rights

The American Convention on Human Rights, also known as the Pact of San José was adopted by many American countries on 22 November 1969. The convention establishes two bodies the Inter-American Commission the Inter-American Court to oversee its compliance. The object of Convention is to “to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man.” The convention in its article 13 protects the freedom of thought and expression.

Article 13. Freedom of Thought and Expression

  1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.
  2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
    1. respect for the rights or reputations of others; or
    2. the protection of national security, public order, or public health or morals.
  3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
  4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.
  5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, colour, religion, language, or national origin shall be considered as offenses punishable by law.

3.2.3 African Charter on Human and Peoples’ Rights

The charter also known as the Banjul Charter came into effect on 21 October 1986 seeking to promote and protect human rights and basic freedoms in the African continent. At present it has been ratified by 53 nations including all African Union members except for Sudan. The charter provides all kinds of rights and duties including civil and political rights, economic, social and cultural rights and peoples’ collective and/or group rights.

Article 9 of the Charter declares that:

  • Every individual shall have the right to receive information.
  • Every individual shall have the right to express and disseminate his opinions within the law.

4. Summary

Thus, the right to freedom of speech and expression gets pride of place in the pantheon of fundamental human rights. It has been recognised, albeit with certain limitations, through international instruments and regional instruments across continents and cultures. It can thus be concluded that the right forms the lynchpin of a vibrant democratic society.

you can view video on International and regional Instruments on Free Speech and Expression

Reference

  • Defeis, Elizabeth F. “Freedom of speech and international norms: A response to hate speech.” Stan. J. Int’l L. 29 (1992): 57.
  • Sohn, Louis B. “New International Law: Protection of the Rights of Individuals Rather Than States, The.” Am. UL Rev. 32 (1982): 1.
  • Annual reports on Freedom of Opinion and Expression, Special Rapporteur to the Commission on Human Rights (CHR) and Human Rights Council (HRC), (http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/Annual.aspx)
  • General comment No. 34, on Article 19 of The Universal Declaration of Human Rights (http://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf)
  • Human Rights Education Associates,. ‘Freedom Of Expression’. N.p., 2014. Web. 10 Nov. 2014. (http://www.hrea.org/index.php?base_id=147)