Enforcement

A legal saying is that for every right, there is a remedy. The right to freedom of expression can be enforced in the following ways:

1. MUNICIPAL and national COURTS

States that have ratified the International Covenant on Civil and Political Rights (ICCPR) have agreed to ensure that people whose rights have been violated have an effective remedy, that is, some sort of mechanism that they can use to enforce their right to freedom of expression. The ICCPR does not specify how this mechanism should work because all states have different legal systems. A state may create laws and institutions in any way it sees fit, provided that human rights are protected.

2. THE INTERNATIONAL LEVEL

Prior to World War II, international law focused on the relationship between states and left national courts to resolve disputes between a state and an individual. The main reason for this was the concept of state sovereignty. This changed with World War II and the realisation that some issues were so grave that there was a universal need to address them.

A number of international bodies have been created to monitor human rights issues, including violations of the right to freedom of expression.  Some will also receive applications if domestic remedies have been exhausted (or do not exist).

Some of these bodies are not formally binding (that is, they cannot force a state to take a particular action) but they do have significance.  States are keen to avoid being criticised or condemned for violating human rights. A decision by an international body is authoritative, unequivocal and embarrassing, making it difficult for a state to deny or ignore an issue. A decision also strengthens the campaigns and influence of those working to address the issue.

2.1. UN HUMAN RIGHTS COUNCIL (UNHRC)

The UNHRC was created by the United Nations General Assembly (UNGA). It has 47 members, each of which has gained a majority vote within their region. The UNHRC works closely with the Office of the High Commissioner for Human Rights (OHCHR) and meets in sessions three times per year to address specific issues. Within the UNHRC is:

  • an Advisory Committee, which provides policy expertise
  • a Complaint Procedure, which allows individuals and organisations to bring violations of human rights needing attention
  • the Universal Periodic Review, a mechanism for reviewing all member states
  • a number of special procedures, is the general name given to the mechanisms established by the UN Human Rights Council and other inter-governmental organisations to address either specific country situations or thematic issues in all parts of the world.">Special Rapporteurs, such as the Special Rapporteur on freedom of opinion and expression.

The Special Rapporteur on freedom of opinion and expression was created in 1993. The Rapporteur’s job is to:

  • visit countries
  • investigate individual cases and
  • raise cases with governments
  • attend conferences
  • issue press releases and urgent appeals
  • publish reports on different countries
  • publish an annual thematic report to clarify elements of the right to freedom of expression.

2.2. UN HUMAN RIGHTS COMMITTEE (UNHRCm)

The UNHRCm was established by the ICCPR. The UNHRCm is made up of 18 independent experts, who monitor signatory states’ compliance with the ICCPR by examining State Reports and petitions from individuals.

State Reports

  • States submit these every five years in accordance with Article 40 of the ICCPR.
  • The UNHRCm reviews the reports, meets with delegations, and provides positive and negative feedback known as ‘Observations’.
  • NGOs can assist states in preparing their State Reports and can submit shadow reports, outlining additional issues.
  • Shadow reports are vital in helping the UNHRCm to form a balanced opinion, as the UNHRCm has no opportunity to conduct investigations on the ground or verify states’ claims.

2.3. Regional bodies

There are international bodies at the regional level, including the:

  • Inter-American Commission on Human Rights (IACmHR) and Inter-American Court of Human Rights (IACtHR) overseeing the American Convention on Human Rights (ACHR)
  • African Commission on Human and People’s Rights (ACHPR) and African Court on Human and Peoples' Rights (ACtHPR) overseeing the African Charter on Human and People's Rights (AChHPR)
  • European Court on Human Rights (EcmHR) overseeing the European Convention on Human Rights (ECHR).

The IACmHR created a Special Rapporteur for Freedom of Expression in 1997. The Organization for Security and Co-operation in Europe (OSCE) also established a Representative on Freedom of the Media in 1997.