Key Principles of International Law and Freedom of Expression – South and Southeast Asia

• 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 case of Shreya Singhal v. Union of India from the Supreme Court of India, in which the Court stated:

The Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that India is a sovereign democratic republic. It cannot be over emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.

Supreme Court of India, Writ Petition (Criminal) No. 167 (2012) at para. 8 (emphasis added) (1)

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.(2) 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 South and Southeast Asia 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.

Key Principles of International Law

Human rights in international law

Human rights are inherent to everyone and set out minimum standards for treatment of all people.  They are enshrined in both national and international law, and everyone is entitled to enjoy such rights without discrimination.  When fully realised, human rights reflect the minimum standards needed to enable people to live with dignity, freedom, equality, justice and peace.

The cornerstones of human rights are that they are considered to be inalienable and therefore cannot be taken away; interconnected and therefore dependant on one another; and indivisible, meaning that they cannot be treated in isolation.  Not all rights are absolute; some rights may be subject to certain limitations and restrictions in order to balance competing rights and interests.

Human rights under international law are rooted in the Universal Declaration of Human Rights (UDHR), which was agreed to by the United Nations in 1948 following the end of World War II.  The UDHR is not a binding treaty in itself, but countries can be bound by those UDHR principles that have acquired the status of customary international law. Indeed, many of the provisions of the UDHR, including its article 19 guarantee of freedom of expression, are generally considered to reflect customary norms.  The UDHR has further been the catalyst to creating other binding legal instruments, most notably the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).  Together, these three instruments constitute what is known as the International Bill of Rights.  Since their adoption, additional thematic treaties have been developed to address certain topics, such as:

• The International Convention for the Protection of All Persons from Enforced Disappearance.
• The International Convention on the Elimination of All Forms of Racial Discrimination;
• The Convention on the Elimination of All Forms of Discrimination against Women;
• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
• The Convention on the Rights of the Child;
• The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families;
• The Convention on the Rights of Persons with Disabilities; and
• The International Convention for the Protection of All Persons from Enforced Disappearance.

Applying international law in a domestic context

International human rights law is binding on states and sets a standard for domestic law to follow.  As summarised by the UN Human Rights Committee in relation the rights to freedom of opinion and expression guaranteed in the ICCPR:

The obligation to respect freedoms of opinion and expression is binding on every party as a whole. All branches of the State (executive, legislative and judicial) and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State party.  Such responsibility may also be incurred by a State party under some circumstances in respect of acts of semi-State entities.  The obligation also requires States parties to ensure that persons are protected from any acts by private persons or entities that would impair the enjoyment of the freedoms of opinion and expression to the extent that these Covenant rights are amenable to application between private persons or entities.(3)

However, the exact way in which international law obligations are implemented domestically can vary from country to country.

The way in which international law applies domestically is largely determined by whether a state applies monist or dualist principles:

• Monist states are those where international law is automatically part of the domestic legal framework.  However, the exact status of international law — whether above or on par with a state’s constitution or domestic law — varies.
• Dualist states are those where international treaty obligations only become domestic law once they have been enacted by the legislature.  Until this has happened, they are not formally part of the domestic legal system. However, in practice, international law is often still a useful tool for interpreting domestic law, and many courts have developed legislative or doctrinal principles whereby interpretations that are in conformity with international law will be preferred.

States with common law systems are more often dualist, and states with civil law systems are more likely to be monist.  However, the issue of how international law is treated by domestic courts is often more nuanced in practice. For example, constitutional or statutory requirements to consider international law in many jurisdictions can blur the idealised categories of ‘monist’ and ‘dualist’ systems. Because the application of international law is so varied and complicated, practitioners must evaluate the specific context in a given country to understand how to apply international law and standards most effectively.

The Right to Freedom of Expression Under International Law

Freedom of expression under international law

The rights guaranteed by article 19 of the ICCPR comprise three distinct but interrelated rights: the right to hold opinions without interference (freedom of opinion); the right to seek and receive information (access to information); and the right to impart information (freedom of expression).

The UN Human Rights Committee’s (UNHRCtte) General Comment No. 34 provides the Committee’s authoritative views on the correct interpretation of article 19. In this comment, the Committee notes that the right to freedom of expression includes, for example, political discourse, commentary on one’s own affairs and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse.(4) It also embraces expression that may be regarded by some as deeply offensive.(5) The right covers communications that are both verbal and non-verbal, and all modes of communication, including audio-visual, electronic and internet-based.(6)

Under 19(3) of the ICCPR, the right to freedom of expression may legitimately be subject to certain restrictions. A three-part test is used to assess whether such a restriction is justified: (i) the restriction must be provided for in law; (ii) it must pursue a legitimate aim; and (iii) it must be necessary to protect a legitimate aim.(7) The ICCPR provides an exhaustive list of legitimate aims, namely the rights or reputations of others or national security, public order, public health or morals. A similar test applies to the right to freedom of expression as guaranteed under other legal instruments.

In relation to the first step of this tripartite test, the requirement that a restriction be “provided by law”, the UNHRCtte provides the following guidance:

For the purposes of paragraph 3, a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.(8)

UN Human Rights Committe, General Comment No. 34.

The requirement that a restriction of freedom of expression be ‘necessary’ for a legitimate purpose implies that the restriction is proportionate. The UNHRCtte notes the following:

Restrictions must not be overbroad. The Committee observed in general comment No. 27 that “restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected…The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law”.(9)

UN Human Rights Committee, General Comment No. 34.

Freedom of expression online

Article 19(2) of the ICCPR stipulates that the right to freedom of expression applies regardless of frontiers and through any media of one’s choice.  General Comment No. 34 further confirms that article 19(2) protects digital modes of communication.(10)

In a 2016 resolution, the UN Human Rights Council (UNHRC) affirmed(11):

[T]he same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

While freedom of expression is protected by a considerable body of treaty law, it can also be regarded as a principle of customary international law, as evidenced, inter alia, by how frequently the principle is enunciated in treaties, other soft law instruments and constitutional guarantees.(12) Many human rights treaties, including those dedicated to the protection of the rights of specific groups — such as women, children and people with disabilities — also make explicit mention of freedom of expression.(13)

United Nations

The United Nations enshrined the right to freedom of expression in international law in 1948 with the Universal Declaration of Human Rights.  Article 19 states: “Everyone has the right to 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.”  This was the foundation of what later became article 19 of the ICCPR.

The ICCPR is not the only treaty in the United Nations framework to guarantee the right to freedom of expression.  For instance:

• Article 15(3) of the ICESCR specifically refers to the freedom required for scientific research and creative activity, providing: “The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.”
• Articles 12 and 13 of the UN Convention on the Rights of the Child (CRC) contain extensive protections relating to the right to freedom of expression enjoyed by children.
• Article 21 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) contains extensive protections relating to freedom of expression and access to information.

It is therefore clear that the right to freedom of expression is firmly entrenched within the United Nations system, both as an important right on its own, as well as a crucial enabling right.  For example, General Comment No. 25, in the context of the right to participate in public affairs, voting rights and the right of equal access to public service, noted:

Citizens can also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves.  This participation is supported by ensuring freedom of expression, assembly and association.(16)

South and Southeast Asia have only rather limited regional human rights systems and no human rights court. However, the UN human rights system has various means for protecting human rights, including freedom of expression, globally, including in these regions.

New Challenges Posed by the Rise in Digital Technologies

The rise of digital technologies poses a number of novel challenges for human rights protection. This chapter course covered some of the most pressing issues in promoting human rights protection in the digital age:

• What obligations do states have in respect of ensuring access to the internet and guaranteeing ‘net neutrality’? 
• What are the international standards regarding privacy and data protection and what is meant by the ‘right to be forgotten’?
• How should the law of defamation be applied to digital communications? 
• What are the international standards on regulating hate speech and what challenges does the rapid spread of information on social media platforms pose for this issue?
• What human rights challenges have accompanied the growth of cybercrimes and the often heavy-handed reaction of governments to this problem?
• How should the issue of misinformation and disinformation be addressed in a rights-compliant way?
• To what extent is it legitimate to restriction freedom of expression so as to protect national security?
• What are the international standards on the protection of journalists and what novel challenges exist for them in the digital age?
• What recourse do United Nations mechanisms provide for state abuses of human rights?

Conclusion

The right to freedom of expression is firmly established in international human rights law.  Although digital technologies have amplified our ability to express ourselves, their impact on freedom of expression has also raised novel challenges, with particular consequences for journalists and the media.  Rather than being eclipsed by these developments, international standards on freedom of expression have been evolving to address new challenges posed by new communications technologies. As a result, international human rights law plays as important a role as ever in ensuring that the right to freedom of expression is respected, protected and fulfilled, giving individuals a powerful tool to advance their rights.

• 1. Supreme Court of India, Writ Petition (Criminal) No. 167 (2012) at para. 8 (accessible at https://indiankanoon.org/doc/110813550/) (Emphasis Added)
• 2. See article 38 of the Statute of the International Court of Justice (1948) (accessible at https://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf) which documents the four recognised sources of international law.
• 3. General Comment No. 34, Article 19: Freedoms of opinion and expression, 12 September 2011, CCPR/G/GC/34 at para. 7 (accessible at: http://undocs.org/ccpr/c/gc/34).
• 4. UNHRCtte, General Comment No. 34, above n 3 at para 11.
• 5. Id. at para 11. For further discussion on this, see Nani Jansen Reventlow, ‘The right to ‘offend, shock or disturb’, or the importance of protecting unpleasant speech’ in Perspectives on harmful speech online: A collection of essays, Berkman Klein Center for Internet & Society, 2016 at pp 7-9 (accessible at: http://nrs.harvard.edu/urn-3:HUL.InstRepos:33746096).
• 6. General Comment No. 34, above n 3 at para 12.
• 7. For a fuller discussion on how freedom of expression may be legitimately limited, see the training manual published by Media Defence on the principles of freedom of expression under international law: Richard Carver, ‘Training manual on international and comparative media and freedom of expression law’ at pp 14-16 (2018) accessible at: https://www.academia.edu/27961726/Training_manual_on_international_and_comparative_media_and_freedom_of_expression_law).
• 8. General Comment No. 34, above n 3 at para 25.
• 9. Id. at para 34.
• 10. Id. at para 12.
• 11. UNHRC, ‘Resolution on the promotion, protection and enjoyment of human rights on the internet’, A/HRC/32/L.20 (2016) at para 1 (accessible at: https://digitallibrary.un.org/record/845728?ln=en).
• 12. Carver above at n 8 at p. 5.
• 13. Id. at p 5.
• 14. For more see Washington Post, ‘There’s a worrying rise in journalists being arrested for ‘fake news’ around the world’ (2019)(accessible at: https://www.washingtonpost.com/world/2019/12/12/theres-worrying-rise-journalists-being-arrested-fake-news-around-world/) and Freedom House, ‘The Rise of Digital Authoritarianism: Fake news, data collection and the challenge to democracy’ (2018)(accessible at: https://freedomhouse.org/article/rise-digital-authoritarianism-fake-news-data-collection-and-challenge-democracy).
• 15. Association for Progressive Communications, ‘Unshackling expression: A study on laws criminalising expression online in Asia’ (2017) at p. 25 (accessible at: https://www.giswatch.org/sites/default/files/giswspecial2017_web.pdf). For a more recent overview of jurisprudence from South Asia, see Divya Srinivasan and Gayatri Khandhadai, Association for Progressive Communications, ‘Jurisprudence Shaping Digital Rights in South Asia’ (2020) (accessible at: https://www.apc.org/sites/default/files/Jurisprudence_Shaping_Digital_Rights_in_South_Asia_Dec_10_3.pdf).
• 16. UNHRCtte General Comment No. 25 at para 8 (1996) (accessible at: https://undocs.org/Home/Mobile?FinalSymbol=CCPR%2FC%2F21%2FRev.1%2FAdd.7&Language=E&DeviceType=Desktop&LangRequested=False).