|
During its 98th session in New York in March 2010, the Committee continued its first reading of a draft general comment on Article 19 of the International Covenant on Civil and Political Rights (the Covenant), dealing with freedom of opinion and express ion. Developed by Mr. Michael O’Flaherty, the new text will replace existing and comparatively brief general comment No. 10 on the same issue, which dates from 1983.
In a welcome move, the Committee held three public meetings (17, 19 and 25 March) to advance its work on the 54-paragraph revised draft text. This increase in the number of meetings reflected the Committee’s desire to finalise the draft as soon as possible, as well as its openness to public scrutiny of its deliberations. Less welcome was the Committee’s ongoing practice of holding public meetings to discuss detailed and technical documents that are not publicly available.
Over the course of the session, the Committee maintained a slow but steady pace, picking up at paragraph 9 and concluding with paragraph 21. The broad topics covered by these paragraphs were the scope of the rights of freedom of expression and opinion; freedom of expression in the media; access to information; freedom of expression and political rights; and limitations on freedom of expression. In all but two instances (where the Committee resorted to bracketing text), consensus was reached and the amended text adopted. However there were a number of points of contention that will also have to be revisited at future meetings, as outlined below.
Of particular note is the inclusion of a section on 'access to information', which is broadly framed as a 'general right' that obliges States parties to enact 'freedom of information procedures.' These procedures would include freedom of information legislation, that should be rapid, affordable and open to appeal. Further, States parties should bear the burden of demonstrating that any request for information would be incompatible with the Covenant. Mr. O'Flaherty referred to this as 'a truly innovative development' in the Committee's views on this matter.
To assist the Committee in the task of drafting the general comment, the Open Society Justice Initiative organised a lunch time panel of experts to address its members and engage in an interactive dialogue. The contribution of the Dean of Yale Law School, Robert Post, provided a critique of the development of national laws to prevent hate speech and blasphemy. He encouraged States to focus on eliminating other forms of inequality and discrimination that impede the human rights of vulnerable groups and minorities, rather than prioritizing laws against hate speech. Other speakers suggested States should commit to ‘full disclosure’ of information as a matter of course (as opposed to disclosure upon request) when legislating to guarantee access to public information, and welcomed a recommendation in the draft text that States parties decriminalize defamation laws, a development that would benefit human rights defenders.
The detailed and technical nature of the Committee’s deliberations reflected its desire on the one hand, to craft a document that will stand the test of time, and on the other, will provide an authoritative and instructive tool for State parties to better understand and fulfill their obligations under the Covenant. The Committee was also very conscious of the need to err on the side of brevity and avoid producing an overly academic document that would be impenetrable to non-lawyers. As a result, considerable time was spent discussing which cases from the Committee’s own case law should be cited, and what practical examples should be included to illustrate the scope of the various rights covered by article 19. To streamline the text, it was agreed that all case law and references to other general comments would be relegated to footnotes. Further, in the sections of the text where the scope of rights is outlined, it was agreed that lists of examples should be non-exhaustive to reflect the fact that the Committee’s case law is evolving.
For example, in relation to the scope of the right of freedom of expression, Mr. Fathalla triggered a debate which resulted in the example of the ‘choice of clothing or the wearing or carrying of a religious or other symbol’ being deleted from the list of examples in (new) paragraph 12. The Committee agreed that although these examples were non-verbal forms of expression, their own case law indicated that it would ‘depend on the particular circumstances’ as to whether or not they would be protected under the Covenant. It was agreed that such vague language would more likely confuse States parties, rather than clarify their obligations, hence the decision to delete them.
One matter that the Committee was not able to resolve this session concerned the proposed sub-heading of ‘limitations on freedom of expression’, which introduces the longest section of the general comment. Ms Wedgewood among others, was concerned that the word ‘limitations’ sent an inappropriate message to States. She suggested the language of article 19(1) – which refers to ‘restrictions’ that are ‘provided by law’ and ‘necessary’ – would remind States of their obligation to narrowly interpret when and how these rights can be curtailed. Mr. Rodley proposed an alternate heading of ‘scope of freedom of expression’ (and amending the earlier heading that would otherwise be identical) to avoid negative terminology altogether, but to his dismay, Mr. Fathalla and Ms. Wedgewood subsequently advocated referring to ‘permissible limitations’. This will be one of the points of contention that the Committee returns to at its next session in Geneva in July.
Another matter that will remain under consideration is a new paragraph (not publicly available) that was drafted by Mr. Amor. During the Committee’s consideration of ‘freedom of opinion’ and ‘access to information’, several members were concerned by the requirement in some States that a person’s identity card reveal their religion, as well as State practice of compiling secret files on individuals’ political, trade union or religious affiliations. However, the text that Mr. Amor presented was broadly drafted and touched on when and how States and the private sector may use electronic data relating to an individuals’ political, religious or other opinion or belief.
This became the topic of a lengthy discussion as the session drew to a close. Mr. Lallah questioned whether the Committee had sufficient case law to support the proposed breadth of the limitations on the public and private sectors. To address concerns from Ms. Wedgewood about the legitimate collection of personal information by the private sector, Mr. Thelin suggested the text specify that such data could only be used with the consent of the person concerned. Members also debated whether the text really related to article 19(1) of the Covenant and the concept of ‘non-interference’ in religion, with Mr. Fathallah arguing disclosure of one’s religion on an ID card was not ‘interference’, and Mr. Rodley arguing that the right to not express one’s religion fell squarely within the scope of article 19(1). A further interpretation from Mr. O’Flaherty was that the issues under discussion were more relevant to article 17 and the right to privacy, in which case, the text did not belong in this general comment at all.
Other matters that were discussed at length and resolved included:
- How to express the point that article 19(2) embraces all speech, but does not endorse all speech. The text now clarifies that this article ‘embraces even views that may be regarded as deeply offensive, albeit such expression may be limited in accordance with the provisions of article 19 (3) and article 20’ (para.11).
- Whether ‘a free and uncensored press or other media’ is essential in ‘a democratic society’. It was agreed that this is essential ‘in any society’ and is ‘a cornerstone of a democratic society’ (para.14). This debate echoed the Committee’s discussion in relation to paragraph 2 of the draft text.
- How to frame State responsibility to ensure a free media, given that the general comment can only address States parties (not media outlets themselves) and should not encourage States parties to unduly interfere or intrude in the operation of the media. New language was added to para.14 to the effect that ‘States parties must take particular care to encourage an independent and diverse media, including to encourage access to the media for minority groups’ (para.14).
Prompted by the inclusive and thorough manner in which the Committee worked, the Chair, Mr. Iwasawa, expressed the hope that the first reading would be completed by the close of the next session. However, the very complex and controversial issues contained in the latter part of the draft, including ‘restrictions related to counter-terrorism measures’, and ‘defamation’ and ‘blasphemy laws’, mean this might be an overly ambitious goal. Another factor that may slow progress is a change in membership of the Committee in January 2011, as the terms of nine members expire at the end of this year. Although it is unlikely that all nine seats would change hands (there is no restriction of the number of terms members of this Committee can serve), any new member would have the prerogative to suggest changes to the text during the second or subsequent readings.
ISHR will also publish an analytical overview of the four State party reports that were reviewed by the Committee during the 98th session: Argentina, Mexico, New Zealand, Uzbekistan. This article will include an update on the Committee’s methods of work and other decisions taken during the 98th session. In addition, brief summaries of the four countries under review will be posted on our treaty body webpage.
Other information:
ISHR report on first reading of the HRC's draft general comment no. 34 on freedom of expression, 23 and 27 October 2009
|
