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On 20 and 21 July 2010, during its 99th session in Geneva, the Human Rights Committee (the Committee) continued its first reading of Draft General Comment No. 34 (the Draft Comment) on Article 19 of the International Covenant on Civil and Political Rights (the Covenant). Article 19 safeguards the right to freedom of opinion and expression. Previous ISHR reports on the Draft General Commentcan be found here, here, and here.
The Draft Comment was authored and presented to the Committee by Mr Michael O'Flaherty. At this session, Committee members discussed paragraphs 23 up to 36. The debate covered the use of case law as a source of law when restricting freedom of expression, defining customary law, and the notion of national security, amongst others. The dissemination of the draft outside of Geneva was also raised.
The first day saw a lively debate, with many Committee members taking the floor. An initial issue raised by various members was the broader distribution of the draft. Currently, it is only made available to persons attending the session in Geneva. The Chairperson, Mr Yuji Iwasawa, indicated that the Committee’s Bureau had decided not to disseminate it further due to the potential for confusion between different draft versions. Once the first reading is completed the Draft Comment will be widely distributed for comments. This is expected by the end of October 2010, during the 100th session of the Committee.
The Draft Comment recalls that restrictions to freedom of expression must be provided by law. It states that this may include case law. However, some legal systems only recognise statutory law as a source of law. Mr O’Flaherty stated that there are ‘a bewildering array of legal practices’, however, case law can play an important role in the Committee’s work. Some Committee members come from legal systems that do not use or recognise case law as a source of law. This led to an intense debate over the use of the term in the Draft Comment. It was ultimately agreed that case law would be qualified with the words ‘where appropriate’ in order to ensure the relevance of the document to all legal systems.
Some concern was expressed about the use of the term ‘traditional law’. The Draft Comments states that it is not compatible with the Covenant for restrictions to freedom of expression to be enshrined in ‘customary, traditional or religious law’. Committee members were concerned about the unclear nature of the concept of traditional law. However as Mr O’Flaherty highlighted, some reference to customary and traditional law was needed because there are restrictions on freedom of expression that come from non-standard sources of law, or ‘law that does not derive from constitutional sources’. Mr O’Flaherty further indicated that as stated in General Comment 32, customary law was said to include ‘traditional and religious law’. Therefore, a compromise was reached by amending the paragraph, removing the words ‘traditional or religious’ leaving only ‘customary law’.
On the issue of expressions that may pose a threat to national security, Ms Majodina stated that States parties should show a direct connection between the expression and the negative impact on national security for such a restriction to be legal. She wanted to prevent States from using the preservation of national security as an excuse to suppress an individual’s right to freedom of expression. Until recently the Committee looked only at whether the law was reasonable. However, in a positive step, the Committee will now look at the nexus between the application of the law and what the individual has actually said when determining whether the restriction of freedom of expression is in line with the Covenant.
The Committee’s deliberations were detailed and specific throughout, which continues to reflect its desire to create a document that will stand the test of time, and provide an authoritative and instructive tool for State parties to better understand and fulfil their obligations under the Covenant. The aspiration of the Committee is to finish the first reading in the next session, after which the Draft Comment will be more widely distributed for feedback prior to the commencement of the second reading.
For further information on the Human Rights Committee, please visit their website.
The Human Rights Committee (the Committee) began its 101st meeting on 14 March, in New York. At this session the Committee will review reports from Serbia, Slovakia, Mongolia, Seychelles, and Togo. Seychelles will be reviewed in the absence of a report. Lists of issues will be adopted for Iran, Dominican Republic, Norway, and Yemen. The programme of work is available here.
At this session the Committee will begin the second reading of its draft general comment on Article 19 of the International Covenant on Civil and Political Rights, on freedom of expression. At the conclusion of the first reading, at the 100th session of the Committee, comments were invited from NGOs and other stakeholders. The Committee will now consider those submissions as it commences the second reading. ISHR's reports on the first reading can be found here.
This meeting will mark the end of Mr Yuji Iwasawa's role as Chair of the Committee. A new Chairperson will be elected at this session.
For more information on this session of the Committee, see OHCHR's webpage. Further information can be obtained from the Centre for Political and Civil Rights.
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