The struggle for ensuring freedom and right to carry out basic human activities has been long going in many parts of the world even today. One of the most important but basic human right is the right to free expression, which many humans are not allowed to assert. Instances from across the globe reveal that although progress has been made to ensure each individual is allowed to live and express freely, a lot has to be done. Cases of individuals attacked or killed because of expressing their opinion on different issues are abounding in today’s world. In most cases, the right to free expression is violated in the name of religion. The 2016 attack in the office of Charlie Hebdo, a newspaper in France exemplifies the violation of right to free expression.
The aim of the present essay is to shed light on the current framework of international human rights law on the right to free expression. The paper will explain the notion of free expression and analyze its importance. Further, it will examine the need to have strict laws for protecting this right. The paper will then critically analyze the effectiveness of the UN Universal Declaration of Human Rights (UDHR) in ensuring the right to freedom of expression.
After the Second World War, the United Nations came into being in a complete form with the dissolving of the League of Nations. The formation of the UN brought to the fore, the need for reinsuring and reassuring the basic human rights of the people across the globe. The end of the Second World War gradually ended the colonialism in almost all the nations specifically in the Asian region although the African countries had yet to be liberated. This had a huge impact on the realization of human rights by the countries having dominant powers. This led to the adoption of the Universal Declaration of Human Rights on December 10, 1948. The declaration was made after the world leaders realized that atrocities such as those carried out during the two wars must never be repeated. World leaders took the decision to comply with the UN Charter with a vision to “guarantee the rights of every individual everywhere”. These rights encompassed all aspects of life including the right to speak and express freely, the right to live, to follow any religion or belief, right against discrimination, protection of vulnerable groups and other rights. The creation of UDHR further resulted in legislating these rights and freedoms through the International Human Rights Law. This meant that any violation of these rights would directly mean the violation of international law and hence, would come under punishable offence.
The notion of free expression refers to the freedom enjoyed by individuals to express their thoughts and ideas freely without worrying about possible attacks. Any individual or community has the right to speak freely on issues that they think concern them or the country. In the past, especially before and during the two World Wars in the 20th century, when the world was suffering from the atrocities of colonialism, freedom of expression along with other basic rights had no value. The colonials that included British, France and other European nations exerted ultimate power and authority and subjugated the rights of the colonized citizens. The people were not allowed to speak against the rulers and if they did, they were subjected to brutal punishments. The colonial rulers even used other tactics and strategies to silent the people to prevent them from using their freedom of speech rights. Violating the right to free speech was not considered an offence prior to the First and Second World War although many organizations in various countries were vocal about it. In particular, the non-profit, non-governmental organizations came out in protest against the colonial powers and invoked the undermined population to rise up and speak.
After the introduction of UDHR and the subsequent International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), hopes of ensuring the right to free expression resurfaced. People across the globe developed high hopes that equality shall be established again. Thomas Buergenthal, Dinah L. Shelton and David Stewart while reviewing the UDHR and IHRL, states that the laws have ensured remarkable progress in terms of protecting the rights of all humans all across the globe. The author further highlights the political significance of these laws and observes that states have now become more responsible in protecting the human rights as they have realized its influence in the political and economic sector. Naidoo, Jamie Campbell and Miriam Sweeney provide a contrasting view to this argument stating that the laws that are meant to protect the rights of the people pertaining to free speech have drastically failed. One prime example of the failure of IHRL and UDHR is the attack on Malala Yousafzai in 2012 in the Swat Valley of Pakistan by the Taliban extremists. She was attacked because she spoke freely about the right to education for the girls in her valley.
It could however be pointed out that prior to the UDHR and IHRL, the situation was even worse as there was no law that could protect the rights. As JanaVon Stein points out, “despite the large human cost of their failings, the UDHR, ICCPR and other mechanisms are fit for the contemporary world as these have ensured human rights being codified I international law”. The author further mentions that these mechanisms have helped the nation-states to strengthen their legal instruments for the protection of human rights of their citizens. In light of this view, it must be stated that introduction and implementation of international laws to safeguard the rights to freedom of expression have failed to take into account the cultural and religious aspects.
The freedom of expression, as discussed in the above section is extremely vital for a country to develop and progress completely. It is the most basic human right that underpins almost all other rights and gives those the space to flourish. According to the ICCPR, Article 19 (1), “Everyone shall have the right to hold opinions without interference”. Breaking it down in simpler words, it means that every individual is free to have personal opinions on any issue and no one else is entitled to interfere. The second part of Article 19 declares, “Everyone shall have the right to freedom of expression”. This is the most significant part of the ICCPR Article 19 as it incorporates all the aspects related to freedom of expression. It further elaborates that the people have the right to inquire about, obtain and pass on information and thoughts of all kinds.
From the above discussion, it is clear that the right to free expression is vital in ensuring other rights of the citizens. Apart from that, the freedom of expression is crucial in establishing an equal society. As Eric Neumayer remarks, there are groups in all parts of the world in both developed and developing nations who are still struggling to attain complete access to free expression. This is caused due to several reasons that include poverty, discrimination on grounds of caste, religion and community, and pressure from cultures. It is therefore important to ensure that the IHRL on right to free expression is imposed strictly, so that these marginalized groups could come forward and expresses themselves freely.
It has been evident that the laws mentioned in the UDHR and its subsequent documents to enable citizens across the world enjoy freedom of expression amongst other rights, have been challenged. Anthony E Cassimatis notes that while the laws incorporated within the Article 6 of ICCPR apply in war times, these are put under lex specialis (doctrine that relates to interpretation of law) in IHRL when it comes to prohibiting arbitrary taking of human life. Emily Howie further finds flaws with the IHRL as resulting from the UDHR. The author states that the declaration was initiated in view of the atrocities carried out by the Nazis against the Jewish people throughout the Second World War. It was thus directed against a particular community and not to any specific individual. However, the UDHR incorporated conventions that concerned the rights of individuals and not an entire community. Therefore, states the author, these conventions need to be revised in order to encompass communities and not just individuals. Apart from that, incorporating declarations into International Law relinquish the horrors that people had to suffer and are suffering. The statement is valid because the IHRL has failed to safeguard the right to free expressions even decades after its implementation. Instances of human rights violations in Syria, Libya, Yemen and Turkey amongst several others confirm it.
The UDHR and IHRL had been successful in preventing the world from going into war again for over seven decades but it has failed to stop genocides and other violence arising due to lack of freedom of expression. Global trends on the right to freedom of expression demonstrate that states have continuously violated international law by restricting the rights. Six categories comprising laws that violate right to freedom of expression by unlawfully restricting it have been identified. These are, laws criminalizing national treachery, laws avoiding radicalism and terrorism, media regulating laws. Other categories include laws leading Information and Communication Technology (ICT), laws barring offense and label and laws confining explicit categories of content. In the recent decades, states have effectively silenced those who speak out against the regime by inflicting laws that criminalize espionage, treason and sedition amongst others. They have mostly targeted journalists, protestors, activists and even bloggers. The cases of journalists being arrested and charged for violating state laws by revealing stories that regimes do not want to disclose are abounding. In countries as Malaysia, Myanmar, Egypt, Russia, China, and many others, strict laws are imposed that prohibit citizens from speaking anything against the state. These evidences provide clear indication that the IHRL on right to free expression is under severe threat and hence, must be reintroduced with stricter amendments.
As evident from the above discussion, the International Law that safeguards the right to freedom of expression is under threat from the states. Analyzing the effectiveness of the declaration and the subsequent covenants becomes easier keeping the above discussion mind. The laws were incorporated in the ICCPR to protect the rights of individuals concerning expressing their opinions and ideas. The incorporation of the declarations made in the UDHR has made it possible for legislators across the world to protect the rights of the people in terms of expressing freely. The people have the right to express their opinions and ideas in written or verbal form, through creative arts or literature or through the visual medium or any form of expression available to them. After the Second World War, many internal conflicts took place within societies showing the ineffectiveness of the laws safeguarding the rights.
Conclusion
To conclude, it must be stated that although the international law on rights to freedom of expression had been influential in different parts and at different, the overall effectiveness is lacking. The above discussion shed light on the history of international laws governing freedom of expression and its effectiveness in the contemporary world. a thorough analysis of the law was done to find its current relevancy. It was revealed that the current laws protecting the right to free expression lack in many aspects. Instances have been provided that show the need for a stricter reformation in the current framework of the international law. The analysis further revealed that although the UDHR and IHRL have been effective in preventing war between nations, it has failed to control the internal conflicts and genocides. The essay also explained the notion of free expression and the significance it has for protecting other human rights. The analysis also found that the UDHR was initiated keeping in mind the atrocities done to a community but the declarations barely mentioned anything related to communities. All the laws were incorporated to safeguard the rights of the individuals only and not a community. Further research on the topic is suggested to have a better understanding on the ways the present law could be amended.
References:
Buergenthal, Thomas, Dinah L. Shelton, and David Stewart. “International human rights in a nutshell.” (2009).
Carozza, Paolo G. “Subsidiarity as a structural principle of international human rights law.” American Journal of International Law 97.1 (2003): 38-79.
Cassimatis, Anthony E. “International humanitarian law, international human rights law, and fragmentation of international law.” International & Comparative Law Quarterly 56.3 (2007): 623-639.volume 6,issue 1
Hathaway, Oona A. “Do human rights treaties make a difference?.” International Law and Society. Routledge, 2017. 3-110.
Howie, Emily. “Protecting the human right to freedom of expression in international law.” International journal of speech-language pathology 20.1 (2018): 12-15.
Kennedy, David. “International Human Rights Movement: Part of the Problem?.” Harv. Hum. Rts. J. 15 (2002): 101.
Meron, Theodor. “On a hierarchy of international human rights.” American Journal of International Law 80.1 (1986): 1-23.
Naidoo, Jamie Campbell, and Miriam E. Sweeney. “Educating for social justice: Perspectives from library and information science and collaboration with K-12 social studies educators.” Journal of International Social Studies 5.1 (2015): 196-207.
Neumayer, Eric. “Do international human rights treaties improve respect for human rights?.” Journal of conflict resolution 49.6 (2005): 925-953.
Ohchr.org. “OHCHR | International Standards – Framework For Communications”. Ohchr.Org, 2018, https://www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx. Accessed 12 Sept 2018
Un.org. “The Foundation Of International Human Rights Law”. Un.Org, 2018, https://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html. Accessed 12 Sept 2018
Von Stein, Jana. “Making promises, keeping promises: democracy, ratification and compliance in international human rights law.” British Journal of Political Science 46.3 (2016): 655-679.
Wragg, Paul. “Free speech rights at work: resolving the differences between practice and liberal principle.” Industrial Law Journal 44.1 (2015): 1-28.
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