Under international law, the state is burdened with the duty to serve as the guarantor of human rights. Indeed, one could see this as one aspect of states’ raison d’être.
It is only logical that when a situation arises which threatens the continued existence of the state, and thereby of the human rights of the entire population, international law permits certain proportionate measures to counter that threat.
This includes restrictions on freedom of expression, such as a prohibition on divulging troop movements, revealing military encryption codes or inciting desertion. All the international instruments which guarantee the right to freedom of expression also recognise national security as a legitimate ground for limiting that right.
National security has, however, along with defamation, long been one of the preferred legal tools by which governments around the world, including democratic ones, illegitimately suppress the free flow of information and ideas. Very often, national security restrictions are impermissibly vague or respond to statements which pose only a hypothetical risk of harm, making them ideal instruments of abuse to prevent the airing of unpopular ideas or criticism of government.
The shroud of secrecy that – sometimes justifiably – surrounds national security allows government to exaggerate risks and stoke fear amongst the population, leading to a situation where security claims are accepted even though they are completely unwarranted. As one observer put it: “History is replete with examples of government efforts to suppress speech on the grounds that emergency measures are necessary for survival that in retrospect appear panicky, disingenuous, or silly.”
To combat these problems, increasingly rigorous international standards have been developed to judge whether restrictions based on national security comply with the three-part test.
Defining ‘national security’
No clear definition of what constitutes ‘national security’ has emerged from international jurisprudence. The UNHRCm has at least made it clear that suppression of democratic discourse and human rights cannot be justified on the grounds of national security:
[T]he legitimate objective of safeguarding and indeed strengthening national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights; in this regard, the question of deciding which measures might meet the "necessity" test in such situations does not arise.
International courts have however generally quickly accepted governments’ claims that restrictions on freedom of expression were in fact directed at the protection of national security. Instead, they have focused their attention on whether the restrictions at issue were necessary. In the Observer and Guardian v. United Kingdom, for example, the ECtHR did not question whether a British ban on the memoirs of a former secret agent served a national security goal, even though the book had already been published and widely circulated in Australia and the USA. Instead, the Court found that the ban failed the necessity test since any possible harm to national security had already become irreversible due to prior publication.
The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities has attempted to fill this analytical void in its Siracusa Principles. Principle B(iv) defines when a restriction can be said to serve national security:
National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.
National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.
National security cannot be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exists adequate safeguards and effective remedies against abuse.
According to this definition, restrictions on the basis of national security are only justifiable if they address a threat to the “existence of the nation or its territorial integrity or political independence,” as distinct from localised violence and ordinary criminal activities.
Necessity of restrictions
As noted above, international courts have tended to examine national security claims under the ‘necessity’ test . Two key principles that follow from their decisions, as well as from other international sources, are that statements may only be prohibited if 1) they were made with intent to cause harm to national security, and 2) there is a clear nexus between the statement and the likelihood of this harm occurring.
The requirement of intent seeks to draw a line between legitimate political debate on matters of national security and incitement to illegal action.
The right to freedom of expression covers all kinds of ideas, including separatist or revolutionary sentiments. Citizens should be permitted to introduce any views they hold into the marketplace of ideas and promote them through peaceful means, so that others can form their own opinion about them. However, when the speaker intends to spur others on to concrete acts against national security, it might be considered ‘necessary in a democratic society’ to limit his or her freedom of expression.
The ECtHR has consistently emphasised that intent is a crucial factor to be taken into consideration in judging the legitimacy of a restriction on the grounds of national security. For example, in Sener v. Turkey, the applicant had published a critical article about Turkey’s policy towards its Kurdish minority, and referred to the Southeastern part of the country as “Kurdistan”. The Court observed that:
[A]lthough certain phrases seem aggressive in tone ... the article taken as a whole does not glorify violence. Nor does it incite people to hatred, revenge, recrimination or armed resistance. ... In the Court’s view these are the essential factors which should be considered. ... Furthermore, the Court observes that the applicant was convicted ... for disseminating separatist propaganda by referring to a particular region of Turkey as “Kurdistan” and alleging that the population of Kurdish origin living in that region was subjected to oppression. In this regard, the Court considers that the domestic authorities ... failed to give sufficient weight to the public’s right to be informed of a different perspective on the situation in south-east Turkey, irrespective of how unpalatable that perspective may be for them.
Domestic courts have also imposed a requirement of intent. In India, the Supreme Court set aside a detention order for an individual who had called for a “Gujarat type of agitation,” by which he referred to a protest against price increases in the west of India that had turned violent, and eventually caused the dissolution of the state legislature. The Court emphasised the need to not confuse “what happened in fact and what was intended to happen”, concluding that the various interpretations could be given to Bahadur’s statement, and that he had not necessarily intended for violence to occur. The US Supreme Court similarly held that the state could prohibit advocacy of the use of force only “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The intent requirement further serves to shield speakers from responsibility for unintended responses on the part of their listeners. A speaker who makes comments with grossly reckless disregard for their consequences can, however, be considered to possess the requisite intent.
The second requirement – that there be a clear nexus between the statement and the likelihood of harm occurring – serves to emphasise that states should not take a ‘better safe than sorry’ approach to restricting freedom of expression. Granting governments the discretion to restrict expression based on an unsure or remote risk of harm would create a great opportunity for abuse, and endanger democratic debate about some of the most important and contentious political issues. Moreover, national security can benefit from a situation where individuals with controversial and radical opinions are permitted to express themselves within the framework of the law. This point was stressed by the Israeli Supreme Court:
A democracy must sometimes fight with one arm tied behind her back. Even so, democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. At the end of the day, they strengthen her spirit, and this strength allows her to overcome her difficulties.
The nexus requirement is a consistent feature of the decisions rendered by the ECtHR and other international courts in national security cases. Whether a clear nexus exists between the prohibited expression and the occurrence of violence depends, necessarily, on the specific circumstances of each case. For example, in Karataş v. Turkey, the ECtHR took note of the “the sensitivity of the security situation in south-east Turkey” and the “need for the authorities to be alert to acts capable of fuelling additional violence.” Nevertheless, it found that poetry which was arguably intended to incite violent acts should have been permitted, because it was unlikely to have that effect in practice:
The work in issue contained poems which, through the frequent use of pathos and metaphors, called for self-sacrifice for “Kurdistan” and included some particularly aggressive passages directed at the Turkish authorities. Taken literally, the poems might be construed as inciting readers to hatred, revolt and the use of violence. In deciding whether they in fact did so, it must nevertheless be borne in mind that the medium used by the applicant was poetry, a form of artistic expression that appeals to only a minority of readers.
[E]ven though some of the passages from the poems seem very aggressive in tone and to call for the use of violence, the Court considers that the fact that they were artistic in nature and of limited impact made them less a call to an uprising than an expression of deep distress in the face of a difficult political situation.
By contrast, after the former mayor of Diyarbakır had stated in a daily national newspaper interview: “I support the PKK national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PKK kill women and children by mistake,” the Court ruled in favour of the Turkish authorities. In the context in which the remark was made, the Court found there was a great likelihood of further violence resulting:
The statement cannot ... be looked at in isolation. It had a special significance in the circumstances of the case, as the applicant must have realised. ... [T]he interview coincided with murderous attacks carried out by the PKK on civilians in south-east Turkey, where there was extreme tension at the material time.
In those circumstances the support given to the PKK – described as a ‘national liberation movement’ – by the former mayor of Diyarbakır, the most important city in south-east Turkey, in an interview published in a major national daily newspaper, had to be regarded as likely to exacerbate an already explosive situation in that region.
The UNHRCm also requires a close nexus between a prohibited expression and the occurrence of actual harm. The case of Keun-Tae Kim v. Republic of Korea concerned a founding member of the National Coalition for Democratic Movement, who had distributed and read out documents to an audience of 4000, criticising the government and its foreign allies and appealing for reunification with North Korea (the DPRK). He was found guilty of offences under the National Security Law for having distributed materials which coincided with the views of an ‘anti-State organization,’ namely the DPRK. The HRC found it was,
[N]ot clear how the (undefined) ‘benefit’ that might arise for the DPRK from the publication of views similar to their own created a risk to national security, nor is it clear what was the nature and extent of any such risk. There is no indication that the courts, at any level, addressed those questions or considered whether the contents of the speech or the documents had any additional effect upon the audience or readers such as to threaten public security, the protection of which would justify restriction within the terms of the Covenant as being necessary.
The Johannesburg Principles, developed in 1995 by a group of around 36 experts in an effort to provide helpful standards in the area of national security, summarise the ‘intent’ and ‘nexus’ requirements as follows:
Subject to Principles 15 and 16 [which further limit restrictions], expression may be punished as a threat to national security only if a government can demonstrate that:
(a) the expression is intended to incite imminent violence;
(b) it is likely to incite such violence; and
(c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.
The Johannesburg Principles have no formal legal force but they have frequently been cited by the CHR and domestic courts.
It is recognised in international law that during acute emergencies, states may be unable to perform the careful balancing act normally required to justify a restriction on freedom of expression. Article 4 of the ICCPR allows states parties to temporarily suspend some of their obligations under the Covenant, including Article 19:
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin…
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
Article 4 places a number of conditions on the imposition of emergency derogations. To summarise the main points:
- Derogations may only be made in times of emergency which “threaten the life of the nation”
- Derogations must be officially proclaimed
- Derogations may only limit rights to the extent strictly required and may never be applied in a discriminatory way
- States imposing derogations must inform other states parties through the UN Secretary-General of the rights to be limited and the reasons for such limitation
- Derogating states must inform other states parties of the termination of any derogations.
The case-law of the UNHRCm indicates a great reluctance to recognise the legitimacy of states of emergency which are declared in peacetime. As the UNHRCm noted in its General Comment on Article 4:
If States parties consider invoking Article 4 in other situations than an armed conflict, they should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances.
The UNHRCm also stressed that the application of emergency laws derogating from rights must be of an exceptional nature and limited in time.