Human Rights Committees discusses draft general comment on the right to freedom of expression

19 July 2011

The Human Rights Committee this morning began its second reading of a draft General Comment on States parties' obligations under Article 19 of the International Covenant on Civil and Political Rights, setting out the rights to hold an opinion without interference and to freedom of expression.

Michael O'Flaherty, the Committee Expert serving as rapporteur for the draft General Comment, gave brief introductory remarks, saying that there were some minor typographical errors in the document, but these would all be corrected as they moved forward and the text underwent editing. They had kept the original numbering for the text from paragraphs 24 onward, which explained the slight discrepancy in the numbering. With regard to submissions received, they had received approximately 75 distinct submissions and they were still coming in. Numerous States and several non-governmental organizations had submitted suggestions; currently they had about 350 textual suggestions from all the communications received. Mr. O’Flaherty said that while there were a large number of suggestions, they could be distilled into a manageable number as many of them were vague or were comments and not actual suggestions, while others seemed to fall into distinct categories that could be considered when drafting the text.

The Committee then began reviewing the document on a paragraph-by-paragraph basis, reviewing sections regarding restrictions on freedom of expression and political rights and the need for any restrictions to be compatible with the provisions of the Covenant. States parties had to demonstrate the legal basis for any restrictions imposed on freedom of expression and provide details of the law and of actions that fell within the scope of the law. Experts commented and proposed changes to the draft General Comment.

Committee members also discussed a particular sentence in paragraph 25 which referred to restrictions on freedom of expression as provided by law and whether to delete one sentence as extraneous. The sentence under question read: “Law in this regard may include statutory law [and, where appropriate, case law].” The Committee also discussed whether the reference to customary law should be made clearer by referring to it as law “enshrined in traditional, religious or other such customary law.” Committee members then discussed whether to enumerate the various types of law that could be used to abridge freedom of expression, such as parliamentary law, statutory law, case law, etc.

Committee Experts also discussed paragraph 30 which deals with laws pertaining to treason, sedition or other laws that restrict freedom of expression to protect national security. States parties had submitted suggestions and comments on this issue with some saying that they could not accept the language used in the draft General Comment because it did not represent a total prohibition on such laws and recognized that there could be certain circumstances under which it was permissible for States to outlaw certain forms of speech to protect national security. Some Committee members anticipated problems, fearing that this language would now require a definition of national security and this would be a very difficult task.

There was also a great deal of discussion regarding paragraph 33 pertaining to public morals and the need to highlight that laws restricting freedom of expression on the basis of morals be non-discriminatory in manner. Experts referred to the Committee’s General Comment 22 which said that morals differed from one society to another so some of them were worried that by allowing this language in the draft General Comment it would undermine freedom of expression because States could then use this language as a way of undermining the right based on cultural or societal norms. There had to be norms that were universally applicable, while at the same time recognizing different values and cultures. Also, was there a difference between “public morals” and “morals”, as the text was not clear on this point? If one talked about individual morality and individual behaviour then that created numerous problems, but it made more sense in French and Spanish to refer to public morality and was more in keeping with the underpinnings of the Covenant. Committee members agreed that given the linguistic differences the text should refer to public morality.

The Committee publishes its interpretation of the content of human rights provisions, known as General Comments, on thematic issues or its methods of work. To date, it has issued 33 General Comments. The General Comments of all human rights treaty bodies are compiled annually and the latest version can be found in the document HRI/GEN/1/Rev.9 (Vol.I).

The Committee will next meet in public on Wednesday, 20 July at 3 p.m. when it will continue consideration of draft General Comment 34.

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For use of the information media; not an official record