Читать книгу The Handbook of Communication Rights, Law, and Ethics - Группа авторов - Страница 46

The insufficiencies of the Universal Declaration were corrected to a certain extent by the ICCPR, adopted by the UN General Assembly Resolution 2200 A (XXI) on December 16, 1966, together with the International Covenant on Economic, Social and Cultural Rights.

However, the ICCPR establishes the first control and guarantee mechanisms of a universal nature, such as the power of states to recognize the competence of the Human Rights Committee (HRC) to hear interstate complaints (Art. 41 and 42) or individual communications (through ratification of the Optional Protocols). States often comply with the committee’s reports and final recommendations because of its moral value, even though these documents have no legally binding value. Perhaps the significance of this procedure is that it has been shaping the closest thing to a UN “case law” on fundamental rights, with particular attention paid to the communication rights set out in Article 19 of the ICCPR (Joseph, Schultz, and Castan 2005).

Article 19.1 of the ICCPR establishes that “everyone shall have the right to hold opinions without interference.” When it comes to this right, the covenant permits no exception or restriction. Freedom of opinion encompasses the right to change one’s mind when one wishes and for whatever reason one freely chooses. No one’s rights recognized in the covenant can be violated on the basis of the opinions that he or she has expressed or that have been attributed to or supposed of him or her. All forms of opinion – including those of a political, scientific, historical, moral, or religious nature – are protected. Considering the expression of an opinion as a crime is incompatible with Article 19.1.⁶ Harassment, intimidation, or stigmatization of a person based on his or her opinions, including arrest, remand in custody, prosecution, or confinement, constitutes a violation of Article 19.1.⁷ It also establishes that any coercive attempt to make a person maintain or not maintain an opinion is prohibited.⁸ The freedom to express one’s opinions necessarily includes the freedom not to express them.

The content of Article 19.2 of the ICCPR is very similar to that of Article 19 of the UDHR; the former states:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

In its General Comment No. 34, the UN HRC specifies that the right contained in para. 2 includes political thought, comments on personal and public affairs, door-to-door campaigns, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious thought. It may also include commercial advertising. The scope of para. 2 even extends to expression that might be considered deeply offensive; this expression can only be limited in accordance with the provisions of Article 19, para. 3, and of Article 20. We cannot ignore the complementarity between Articles 19 and 20 of the covenant, the latter of which establishes that: “1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” This Article has also been given a much-needed reinterpretation in recent times, but I think that consideration of this would require going far beyond this chapter’s space and subject matter.

Para. 2 protects all forms of expression and the media by which they are disseminated. These forms include oral and written words and sign language, as well as nonverbal expressions such as images and artworks. The media through which expression takes place include books, newspapers, brochures, posters, banners, clothing, and legal submissions, as well as all forms of audiovisual, electronic, or Internet-based modes of expression.⁹

But the contribution of ICCPR Article 19 with respect to UDHR Article might be para. 3, which establishes limits by clarifying that:

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 (order public), or of public health or morals.

Therefore, para. 3 cannot be used to silence defenders of multiparty democracy, democratic principles, and human rights,¹⁰ and either can it be used to attack a person, including in the forms of arbitrary arrest, torture, death threats, and murder.¹¹ All such attacks must be the subject of an active and timely investigation; their perpetrators must be prosecuted;¹² and adequate reparation must be offered to the victims or, when they have lost their lives, to their representatives.¹³

Restrictions must be provided for by law; the HRC has extensively considered the concept of “law.” The first of the legitimate reasons for introducing a restriction listed in para. 3 refers to respect for the rights (those recognized in the covenant and in rights-related international law) or the reputation of others (which may refer to other people on an individual basis or as members of a community).¹⁴

The second reason is the protection of national security, public order, or public health or morals. It is not compatible with para. 3, for example, to enforce laws to suppress information of legitimate public interest that does not harm national security; to prevent the public from accessing this information; to prosecute journalists, researchers, environmentalists, or defenders of human rights for having disseminated this information;¹⁵ or to include in the scope of these laws categories of information such as those related to the commercial sector, banking, and scientific progress.¹⁶ For reasons of maintaining public order, in certain circumstances it may be permissible, for example, to regulate the right to deliver a speech in a particular public place¹⁷ or to consider whether certain forms of expression constitute contempt of court.

As the HRC indicated in its General Comment No. 22:¹⁸

The concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.

These limitations must be understood in the context of the universality of human rights and the principle of nondiscrimination, and restrictions must not be excessively broad.

The HRC stated in its 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 the desired result; and they must be proportionate to the interest to be protected.¹⁹

The principle of proportionality must also take into account the form of expression in question as well as the medium through which it is disseminated; the covenant affords great importance to uninhibited expression in public debate about public and political figures in a democratic society.²⁰

In this regard, the committee has restated that the scope of this freedom should not be determined by reference to a “margin of appreciation”²¹ and that, if the committee accepts the applicability of this doctrine, the state party²² must, in any particular case, specifically demonstrate the exact nature of the threat to any of the objectives listed in para. 3 that caused it to restrict freedom of expression.²³