Key Principles of International Law and Freedom of Expression

• Human rights have become firmly entrenched in international law since the adoption of the seminal Universal Declaration of Human Rights in 1948.

• Since then, international human rights law has become increasingly influential in domestic courts and has set a global standard for the protection of human rights. 

• Freedom of expression is one right that has benefitted from this trend, but faces novel challenges due to the dramatic changes to the media and information eco-system occasioned by the rise of digital communications technologies. 

• United Nations mechanisms provide tools for those seeking to challenge violations of freedom of expression.

Introduction

Since at least the formation of the United Nations (UN) and the establishment of the modern regime of international human rights law in the wake of World War II, the right to freedom of expression has become universally acknowledged. An example of this universal acknowledgement is found in the constitutional protection of fundamental rights which, in most cases, is a result of the codification of international human rights treaty obligations in the respective domestic legal systems. Throughout the past decades, practice and implementation of these provisions has varied across legal systems and jurisdictions. Recent years have witnessed a regression in the level of implementation of these rights at the domestic level, to the extent of regressive and restrictive laws being adopted, implemented and used to curtail the freedom of expression, notwithstanding its clear protection in the provisions of national constitutions and the international human rights treaties ratified and codified by states.

The overall trend points towards justification of limitations on freedom of expression, freedom of speech and freedom of media and publication based on reasons of national security and a new swathe of legislation related to cybercrimes and electronic crimes. These limitations are justified by reference to provisions – often in the constitution – which specify that rights cannot be derogated from except where specified by law, and therefore legislative organs can – in theory – and do in practice – pass laws that limit these fundamental rights. This is not specific to Courts and jurisdictions in the MENA region, but what is notably distinct is the lack of a judicial exercise that involves balancing the fundamental rights that are to be enjoyed, with the limitations that are being applied by state and security institutions with a view to assessing whether the limitations are proportionate and, therefore, legitimate. This exercise is well known in many jurisdictions both in the MENA region (notably prior to the 1990’s in Egypt, Lebanon, Syria) and in European, American and Latin-American jurisdictions.

Courts in the MENA region have varied in their approach to the adoption and codification of international human rights law, following their ratification of international human rights treaties and conventions. Depending on the system of ratification (monist or dualist – addressed in the sections below in more detail), at times these resulted in constitutional and legal amendments at the domestic level to give full effect to international human rights treaties, or they were implied by virtue of the ratification process and directly applied by Courts.

The post-Arab Spring period initially saw slow but steady adoptions of constitutional amendments that strengthened fundamental rights and freedoms, often citing the events that lead to the reforms and the inherent fundamental rights contained in the constitution and in international human rights treaties and conventions to which the State was a signatory. Since this time, notwithstanding the newly amended constitutions, States – and particularly the legislature – have regressively adopted laws that directly contradict the fundamental rights provided for in the in international human rights law – whether directly, or through the provisions that explicitly affirm the supremacy of international treaties and conventions over domestic laws in the Constitution. Examples of such provisions can be found in several post-Arab Spring Constitutions and are described below.

Generally, several constitutions affirm a commitment to international law and the principles of the UN Charter and the Universal Declaration of Human Rights:

The Preamble of the Algerian Constitution 2020 states:

The Algerian people express their complete commitment to human rights as specified in the Universal Declaration of Human Rights of 10 December 1948, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (both issued on 16 December 1966), the African Charter on Human and Peoples’ Rights of 27 June 1981, and the Arab Charter on Human Rights of 23 May 2004.

Similarly, the Preamble of the Egyptian Constitution (2014, amended 2019) also makes reference to its commitment to the UN Declaration of Human Rights:

We are drafting a Constitution that paves the way to the future for us, and which is in line with the Universal Declaration of Human Rights, which we took part in the drafting of and approved.

The Preamble of Lebanon’s Constitution (1926, amended 2004) confirms that these principles are to be embodied in all sectors and scopes without exception:

Lebanon has an Arab identity and belonging. It is a founding active member of the Arab League, committed to its Charter; as it is a founding active member of the United Nations Organization, committed to its Charter and the Universal Declaration of Human Rights. The State embodies these principles in all sectors and scopes without exception.

Because the right to freedom of expression is protected in so many treaties and soft law instruments, and widely acknowledged in domestic constitutional guarantees, it has come to be regarded as a principle of customary international law. Nevertheless, today’s rapidly evolving world is presenting new and unprecedented threats to the full realisation of the right to freedom of expression for many around the world, especially journalists and the media.

In order for defenders of freedom of expression in the Middle East and North Africa region to address these new challenges adequately, it is crucial to have a firm understanding of freedom of expression in international law. This Module seeks to provide an overview of the key principles related to freedom of expression in international law and provide a foundation for understanding how to use these principles in the new digitally-connected world.

In this module

1. Introduction
2. Key Principles of International Law
3. The Right to Freedom of Expression under International Law
4. United Nations
5. New Challenges Posed by the Rise in Digital Technologies
6. Conclusion

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