Key Principles of International Law and Freedom of Expression – sub-Saharan Africa

Key Highlights

• Human rights have become firmly entrenched in international law since the adoption of the 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 such right that has benefitted from this trend but is increasingly under threat from the dramatic changes to the media and information eco-system occasioned by the rise of the internet.

• African regional instruments, if properly understood and utilised, constitute a powerful tool in the arsenal of defenders of freedom of expression.

Introduction

Since at least the formation of the United Nations (UN) and the construction of a human rights regime founded in international law in 1948, the right to freedom of expression has become universally acknowledged. An example of this universal acknowledgement is found in the case of Madanhire and Another v Attorney General from the Zimbabwean Constitutional Court, where the Court stated that:

“There can be no doubt that the freedom of expression, coupled with the corollary right to receive and impart information, is a core value of any democratic society deserving of the utmost legal protection. As such, it is prominently recognised and entrenched in virtually every international and regional human rights instrument.”(1)

Because the principle of freedom of expression is explicit in so many treaties, and soft law instruments, and is widely acknowledged in domestic and regional law, 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 African defenders of freedom of expression to adequately address these new challenges, it is crucial to have a firm understanding of freedom of expression in international and regional law. This module seeks to provide an overview of the key principles related to freedom of expression in international law, as well as in African regional instruments, and provide a foundation for understanding how to use these principles in the new digitally-connected world.

Key Principles of International Law

Applying international law in a domestic context

Human rights are inherent to all persons and dictate the minimum standard that must be applied to all people. They are enshrined in both national and international law and all persons are entitled to enjoy such rights without discrimination. When fully realised, human rights reflect the minimum standards to enable persons to live with dignity, freedom, equality, justice and peace.

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

Human rights under international law are generally considered to be 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. The UDHR has further been the catalyst for the creation of 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:

• 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 of 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.

In Africa, the African Charter on Human and Peoples’ Rights (African Charter) is the primary treaty governing human rights on the continent. States are the primary duty-bearers for the realisation of human rights, which encompasses both negative and positive duties.

• With negative duties, states must avoid violating the rights of individuals and communities within their territories and protect them against violations by others.
• On the other hand, the obligation to fulfil human rights requires states to take positive steps to enable the full enjoyment of these rights.

In 2023, the African Union Convention on Cyber Security and Personal Data Protection (Malabo Convention) was ratified by Mauritania, the 15th country to do so, thereby bringing the convention into effect. By ratifying treaties, states commit to putting in place domestic measures, such as legislation, to give effect to their treaty obligations.

Applying international law in a domestic context

International and regional human rights law not only sets a standard for domestic law to follow but is in many cases binding on states. However, the exact way in which international law obligations are implemented domestically varies around the world.

The ICCPR creates a binding obligation on states. Regional human rights standards are also particularly influential, especially since there is near-universal ratification of the African Charter by African states.(1)

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, their exact status — 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, courts are not expected to comply with these obligations in a domestic case, although there are states wherein some parts of international law may be automatically applied or used as a tool to interpret domestic law.

States with common law systems are invariably dualist, and while States with civil law systems are more likely to be monist, many are not. 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 and regional law most effectively.

The Right to Freedom of Expression Under International Law

Freedom of Expression Under International Law

The United Nations was the first international entity to enshrine the right to freedom of expression in international law in 1948 with the UDHR. 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.”(1) This was the foundation of what later became Article 19 of the ICCPR. The rights contained under Article 19 comprise three core tenets:

• 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 right was further elaborated on in General Comment No. 34 by the UNHRCtte.(2) General Comment No. 34 on the ICCPR 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.(3)

It also embraces expressions that may be regarded by some as deeply offensive.(4)

The right covers communications that are both verbal and non-verbal, and all modes of expression, including audio-visual, electronic and internet-based modes of communication.(5)

In terms of article 19(3) of the ICCPR, the right to freedom of expression contained in article 19(2) may be subject to certain restrictions:

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.

With respect to a limitation on the right to freedom of expression under article 19(2) of the ICCPR, a three-part test is used to assess whether such a limitation is justified:

• the limitation must be provided for in law;
• it must pursue a legitimate aim; and
• it must be necessary for a legitimate purpose.(6)

This test applies similarly to limitations of the right to freedom of expression under other legal instruments, including the African Charter.

The ICCPR is not the only treaty within the United Nations framework to address 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 that: “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 in articles 12 and 13.
• 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 about persons with disabilities in article 21.

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, as stated in 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, it was noted that:

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.(7)

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 explains that article 19(2) includes internet-based modes of communication.(8)

In a 2016 resolution, the UN Human Rights Council (UNHRC) affirmed that:(9)

“[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.”

African regional standards

In 2016, the African Commission on Human and Peoples’ Rights (ACHPR) affirmed the UNHRC’s declaration and called on states to respect and take legislative and other measures to guarantee, respect, and protect citizens’ rights to freedom of information and expression through access to internet services.(10) This was supplemented in 2019 by the Declaration of Principles on Freedom of Expression and Access to Information in Africa adopted by the ACHPR, which recognises the role of new digital technologies in the realisation of the rights to freedom of expression and access to information, and also affirms that the same rights that people have offline should be protected online in accordance with international human rights law and standards.(11)

The 2019 Declaration differs from the 2002 Declaration in the following notable ways:

• It emphasises the importance of access to information by dedicating an entire section to the subject, whereas the 2002 Declaration mentioned it only in the Preamble.
• It calls on States to “recognise that universal, equitable, affordable and meaningful access to the internet is necessary for the realisation of freedom of expression [and] access to information.”(12)
• It “articulates State obligations with respect to internet intermediaries, noting that States must ensure that internet intermediaries provide access to the internet in a non‑discriminatory manner and that the use of algorithms or other artificial intelligence uses do not infringe on international human rights standards;”(13)
• It provides guidance on requests to remove online content.(14)

It addresses the protection of personal information and communication surveillance and requires States to adopt laws regulating the processing of personal information.(15)

In 2023 the ACHPR, together with other international bodies, issued a Joint Declaration on Media Freedom of Democracy due to the concern about the impact of online platforms on media freedom and freedom of expression. This declaration provides recommendations to States to secure and facilitate the media’s role as a vital institution and pillar of democracy, with particular attention to online media.(16)

While freedom of expression is clearly protected by a considerable body of treaty law, it can also be regarded as a principle of customary international law, given how frequently the principle is enunciated in treaties, as well as other soft law instruments. Most 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.

• 1. Test Footnote 1
• 2. Test Footnote 2