Assessing the Effectiveness of the ICCPR in promoting Free Speech, Opinion and Expression
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November 20, 2020, Legal Research and Writing Fall 2020
Introduction
The International Covenant on Civil and Political Rights (ICCPR) is a principal covenant that seeks to protect civil and political rights. The United Nations’ General Assembly (UNGA) adopted the ICCPR in December 1966, and it subsequently came into force in March 1976. It forms part of the International Bill of Rights along with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic Social and Cultural Rights. Canada assented TO THE ICCPR in 1976, which has 76 signatories to date.
The ICCPR has had an immense effect on the promotion of human rights and dignity. The ICCPR has been effective in some aspects and some areas. This paper seeks to narrow in on the document’s effectiveness in promoting and protecting the right to free speech, opinion and expression. The paper shall first argue expound on the justiciability of the right under Article 19 of the ICCPR. This paper shall seek to show the extent of effectiveness and discuss why the ICCPR has not been fully effective. It will mainly focus on censorship and the decriminalization of criminal libel and sedition.
The Right to Free Speech, Opinion and Expression
It is essential first to establish a background for this research. Free speech, opinion and expression is vital in achieving democracy and good governance. The right to express one’s opinion without restriction is the oxygen of the state. Historically, authoritarian and dictatorships seek to curtail the right of expression. This has mainly been through harsh legislation. Unjustified limitations are seen as enemies to the spirit of democracy and the rule of law. Hence, the ICCPR provides that restrictions should be founded on law and rational and justified a democratic state founded on human dignity and equality. The state hence, cannot limit the any right or fundamental freedom without reasonable justification. Therefore, the effectiveness of the law protecting freedom of expression is looked at concerning how well it protects the people’s right to freedom of expression.
In Canada, the right to free speech, opinion and expression is guaranteed under the Charter of Rights and Freedoms. The state is permitted to make reasonable limits to human rights and fundamental freedoms. It canvases the right to free press, right to information, and academic protection. The ICCPR seeks to ensure that there is a universal appreciation of the freedom of expression. The following sections shall highlight the few concepts where the ICCPR has been significant.
Censorship
The ratification of the ICCPR has led to increased attention on maximizing the enjoyment of rights while reducing the restrictions. The freedom of expression also includes artistic expression. The state has used media censorship to unreasonably limit people’s rights to publish artistic works, poetry, and use of other media such as pictures, cartoons, and movies. The ICCPR has been instrumental in the reasonable limitation of the right to artistic expression. In the case of Shin, the committee cited that freedom of artistic expression is enshrined under Article 19 of the ICCPR. The court further argued that banning the Claimant’s painting was an unjustified restriction to freedom of expression. In other cases, the ICCPR has been used to assert the state’s actions to censor movies and novels.
The ICCPR has been effective in providing a universal standard for the limitation of human rights. Those who have not ratified its provisions still apply the provisions of Article 19 as customary international law. An important area where the ICCPR has not been effective is internet censorship. Internet censorship has proved to be a challenge as there is still great difficulty assessing what amounts to a justified limitation. The problem arises when the state has to balance between information posted that would be defamatory and free speech promotion.
Sedition and Criminal Libel
Historically, the criminalization of criminal libel and sedition have been used as instruments of totalitarianism. Political leaders have classified any statements or expressions that do not favor their positions or seek to critique their governments as seditious and threats to peace. Also, cartoons and documents have been banned as libelous only because they critique the political position. As was noted by the Commission on Civil and Political Rights, the state must allow political criticism. In the interest of democracy and human rights promotion, the citizenry must poke holes into government policies and directives. They are making this a crime would be detrimental to the rights under Article 19. The CCPR’s research and documents in implementing Article 19 of the ICCPR have been instrumental in decriminalizing criminal libel and sedition.
Decriminalization is seen as the promotion of human rights. Countries that still embrace such laws have received considerable backlash and calls for decriminalization. The decriminalization of these offenses has been passed in many countries as a result of these provisions. Article 19 of the ICCPR provisions have been cited in the decriminalization of sedition and criminal libel. It is seen as a triumph of the right to free speech that such derogative laws are removed and the people are allowed freedom to critique and question their governments.
Safeguarding free speech and expression online
In the present state of increased digitalisation and online networking, the globe is moving steadily into a paperless form of communication. With this, newspapers and magazines can be read and accessed through online websites. The internet provides a wide platform for international and intercultural interrogation. Any information can be posted on social media and millions if not billions of people can readily access and peruse these articles. The web provides the users with an undeniably large opportunity to post messages, send articles or publish any form of information.
The limitations placed on the right to free speech in the internet is not absolute. There is an increase in the publication of false information, defamation and incitement. The ICCPR has been cited in various cases where such information has come under question. The ICCPR seeks to provide for reasonable restriction of free speech. The regulations have been on restricting the sending and disseminating information that is detrimental to the reputation of other people. In most cases the ICCPR has not been seen as effective in protecting the right to free speech on the web as there is no universally accepted means of dealing with the issue. This is mainly because social media platforms exercise little to no control over what is posted, published or sent. Social media companies seek to prevent law suits and privacy violation by leaving the issue alone all together. Their inaction leads to the spread of hateful messages and posts.
The ICCPR’s generous protection of the right to free speech and expression creates a thick blanket of protection under which hate mongers thrive in. It is not common to have one’s communication or hate speech protected by simply calling to Article 19. This provides any site, web page or blogger to post as much hateful and detestable information and claim his/her right to free speech protected. This would seem to act counter to the expectations and spirit of the ICCPR. In this regard states that are too liberal in their application of Article 19 are seen as those that enable such acts and silently sit by, fearing not to infringe the right to free speech.
Conclusion
The ICCPR has seen almost 54 years since its adoption. During this period, it has received mixed results in terms of its effect. Regarding free speech, opinion and expression the concepts of censorship and sedition, and libel have shown areas where the law has been influential in promoting human rights. The most feasible conclusion drawn from the discourse is that the effectiveness is determined by achieving a balance between promoting human rights and providing reasonable and justifiable limitations. With regards to the internet, each passing day creates a new challenge as technology is everchanging. The intersection between the right to information and privacy still creates a wide rift that seems unhealable by the ICCPR and its committees.
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