Setting the global standard on freedom of expression: successes and challenges in the Human Rights Council’s first decade

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Andrew Smith

09 Jun 2016

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 This blog originally appeared on the International Service for Human Rights website

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The Human Rights Council’s anniversary year marks a challenging time for freedom of expression worldwide: impunity for murdered journalists and bloggers, arbitrary arrests of government critics, blocking of social media sites, and the adoption of more and more laws to reduce even further the space for dissent and dialogue.

ARTICLE 19 believes that the international legal framework can empower on-the-ground actors with tools to meet these challenges, to change national laws, policies and practices, and to ensure accountability for human rights violations.

In its first decade, the HRC has made a significant contribution to advancing this normative framework, and taking steps towards implementation. The work of the Special Rapporteur on freedom of expression continues to be instrumental: the detailed recommendations of their biannual thematic reports address persistent and emerging threats to freedom of expression, guiding states on complying with their international obligations. These often lay the groundwork for standard-setting HRC resolutions that can be leveraged at national level to expand the space for free expression.

Of the thematic resolutions, resolution 12/16 on freedom of expression, adopted by consensus in 2009, remains the most comprehensive. Three other successes from the Council’s first decade stand out:

  • Ending impunity: the HRC has been unequivocal that attacks and murders against journalists must never go unpunished. In resolution 27/5 on the safety of journalists, the HRC provides a practical blueprint for action to break this cycle of violence. The HRC must additionally call for states to create a safe and enabling environment in law for free expression, and respond to digital threats to journalists’ safety.
  • Expression online and offline: the Internet is the frontline in the battle to safeguard civic space. The HRC’s important pronouncement that “the same rights that people have offline must also be protected online, in particular freedom of expression” (most recently in resolution 26/13) has reverberated globally. The HRC has recognised that a global and open Internet is a driver of development, that the digital divide must be addressed, and that human rights must underpin Internet governance. Resolution 26/13 commits states to ensure that measures to protect national security online comply with international human rights obligations. Equally crucial HRC initiatives on civil society space, peaceful protest, and privacy have recognised that online freedom is essential in addressing human rights concerns.

The Special Rapporteur’s reports on digital issues give normative clarity to this debate, but bolder leadership from states is needed to translate this to more concrete commitments in resolutions, and action on the ground, crucial in the current context of proliferating state efforts to clamp down on online freedom.

  • Combating intolerance: the adoption of Resolution 16/18 by consensus in 2011 bridged polarised views on how to address intolerance based on religion or belief, committing states to an eight-point action plan to tackle its root causes. This series of resolutions have overcome divisive calls to combat “defamation of religions” to stress that intolerance, discrimination and violence is best countered by opening space for debate.

The OHCHR’s Rabat Plan of Action has strengthened this framework and given guidance for implementation. Endorsed by the Special Rapporteur on freedom of religion or belief, it makes clear the primacy of positive legal and policy measures to encourage pluralism, and addresses misconceptions regarding the circumstances for legitimately restricting free expression. This should guide the “Istanbul Process”, a series of inter-governmental meetings to support implementation, which has enormous potential if made more inclusive, cross regional, and practically focused.

In the coming decade, the HRC must ensure these resolutions are not the high water mark of the institution’s accomplishments, but are instead a benchmark for future progress.

The HRC has three challenges in this mission:

1. Universality

All states, across all regions, must unite to counter attacks on the universality of freedom of expression, which has roots in all parts of the world, as well as strong protections in many national and regional human rights instruments.

A minority of states at the HRC persist in claims that, because freedom of expression is not an absolute right, they have absolute discretion to violate the right. This is often advanced through regressive resolutions or hostile amendments designed to weaken, qualify or obfuscate states’ human rights obligations.

There must be a more robust and nuanced defence of the right to freedom of expression: why protections with a broad scope are needed, and how any limitations must be justified in accordance with international human rights law. The requirements of Articles 19(3) and 20(2) ICCPR have been authoritatively explained in the Human Rights Committee’s General Comment No. 34 and the Rabat Plan of Action. Attempts at the HRC to misrepresent international law should be rebutted.

2. Scrutiny for worst violators

The HRC must step up scrutiny on countries with the worst freedom of expression records, acting early to prevent gross and systematic violations: too many are evading accountability.

Crackdowns on freedom of expression should be considered an urgent wakeup call to a deteriorating situation, and country-specific resolutions must be initiated sooner, regardless of a country’s economic, political or military power. Attempts by states to derail or frustrate country-specific initiatives, including “no action” motions to shut down debate or tactics to divide and distract attention, should be opposed.

When the worst violators of freedom of expression are HRC member states, the execution of the institution’s mandate is obstructed, and credibility undermined. Robust membership criteria must be enforced, with clear expectations that states respond thoroughly to the Special Rapporteur on freedom of expression’s individual communications and requests for country visits.

Increased transparency is needed to ensure accountability, as well as innovative collaborations between states, OHCHR, NHRIs, and civil society.

3. Implementation

The gap between international commitments and national realities for freedom of expression is widening.

States are failing to lead by example. New laws, in addition to existing draconian censorship measures, close the space for freedom of expression, and directly contradict international human rights law and states’ HRC commitments. Interactive dialogues with the Special Rapporteur, and engagement in other relevant HRC debates, should include accounts of concrete measures taken towards implementation.

The third cycle of the Universal Periodic Review should enable robust critique of all states’ records, and demands specific responses from states on the steps taken to implement recommendations.

The HRC must cut through vague rhetoric and deliver measurable change, ensuring that thematic resolutions can function as yardsticks for this task.

Implementation requires bridging information and resource gaps. The standards it produces must be more effectively disseminated and translated for national actors, to empower human rights defenders advocating for change, and to assist parliamentarians, civil servants and judges seeking to deliver it. The Special Rapporteur on freedom of expression is indispensable in assisting states to comply with their obligations, and to ensure accountability. Financial and human resources must match increasing demand for the mandate’s interventions and technical expertise.

Conclusion

It is crucial that the HRC reflects on its accomplishments in advancing normative protections for freedom of expression, and assesses how to consolidate and build upon these gains. It must, however, also confront challenges to closing the implementation gap, ensuring it does not become a fatal credibility gap.

Innovation and resources are needed to strengthen the institution’s agility in translating international standards into national action and accountability. Civil society and human rights defenders are essential to identify where the gap between international commitments and national realities is widest, and what action is needed. The secure and meaningful participation of civil society is essential, and must be strengthened if current challenges are to be overcome. 

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