Human Rights Committee

101^st Session

2788^th Meeting* (PM)

Human Rights Committee Determines Language for Four Paragraphs as It Continues

 

Reading Draft General Comment Covering Freedom of Opinion, Expression

 

Continuing its second read-through of a draft general comment on article 19 of the International Covenant on Civil and Political Rights — concerning freedom of opinion and expression — the Human Rights Committee today determined the language for four paragraphs, covering the substance, forms and context in which such communications take place.

Guided by Michael O’Flaherty, Committee Rapporteur and expert from Ireland, through dense discussions on draft general comment no. 34, the Committee adopted an amended paragraph 11 — concerning the right to seek, receive and impart information regardless of frontiers — agreeing to language that such a right “includes the expression and the receipt of communication of every form of idea”.

In proposing additional wording, Gerald L. Neuman, expert from the United States, argued that the “right to receive” information — particularly communications — was extremely important and merited more attention, especially in relation to political issues.  The right to express ideas, and to receive communication of them, should be treated equally, he said.  However, Christine Chanet, expert from France, viewed his original proposed language, covering the “receipt of voluntary communication of every form of subjective idea”, as an “enormous” restriction in a discussion about rights that could have an unintended restrictive effect.

Tempering those views, Mr. O’Flaherty said the proposal did not compromise discussion on access to public information, suggesting that when speaking of a right to access information, the Committee should not rely on language like “seeking and receiving”.  Rather, the right derived from paragraph 2 bis, relating to the context in which the freedom of expression promoted accountability, he said, emphasizing the importance of distinguishing between the two issues.

Discussion also centred on whether to include a reference to “expression related to sexual orientation and gender identity”, an idea that met with some ambivalence over whether that issue fell within the genus of expression that covered the various forms listed in paragraph 11.

Mr. O’Flaherty’s suggestion to address the issue in paragraph 12 was problematic for Ahmad Amin Fathalla, expert from Egypt, and Krister Thelin, expert from Sweden, who argued that it was illogical to introduce an issue of substance into a paragraph dealing exclusively with the forms and means of expression.  Ms. Chanet added that doing so would scale down sexual orientation to forms of expression alone.  If the Committee wished to add language on “vestments”, it should find language that “bisexualized” the issue, she said.

In the end, the Committee adopted an amended paragraph 12 that included a reference to “dress” and to “sign language”, which, the representative of one non-governmental organization pointed out, had been excluded from the draft.  It also deleted the word “media” from the penultimate sentence, replacing it with the more general “modes of expression”.

In formulating general comments, experts of the 18-member Committee consult with specialized agencies, non-governmental organizations, academics and other human rights treaty bodies, allowing for broader input in elaborating the text.

Advancing through the text, the Committee deleted paragraph 13, dealing with expression in a language of one’s own choice, concerned that its “internal tensions” could not be resolved during the session.

The Committee also amended the last sentence of paragraph 14 to elevate the right to receive information.  In its original construction, that right was described as a “corollary to the specific function of any journalist to impart information”.  Persuaded by arguments by Mr. Neuman that that right was in no way corollary, the Committee agreed to adopt his proposed language for the last sentence: “The public also has a corresponding right to receive information imparted by the media.”

During consideration of that paragraph, the Committee rejected a proposal from Greenpeace to include specific language that would grant certain protections enjoyed by the media to the activities of non-governmental organizations that contributed to informed public debate on matters of public interest.  One Committee member voiced concern that identifying privileges granted to journalists and then transferring them to non-governmental organizations would entrench a system with which he was uncomfortable.  Another expert suggested that there was no good definition of who was or was not a non-governmental organization.  Moreover, the section containing paragraph 14 focused on protection, not freedom of expression, yet another expert argued.

Throughout the debate, Committee members struggled with the need to address the quickly changing/ever-evolving communications landscape, often referring to events unfolding in North Africa and the widespread reliance on so-called “new media” and “social media”.  They debated whether to include references to new and emerging communication platforms like mobile phone technology and websites like Facebook.

“We have to have it wherever we put it because the section on media looks like it came from before 1950,” Mr. O’Flaherty said, adding that he would draft an additional paragraph encompassing the Committee’s desire to modernize the text and propose it during its next meeting on the general comment.

Following protracted debate over which verbs to use in the first sentence of paragraph 15 — “must” or “should”, “encourage” or “guarantee” — as well as over the stakes involved in singling out access to the media by minorities in the second sentence, the Committee agreed to combine the two sentences to read: “State parties should, as a means to protect the rights of media users — including members of ethnic, religious and ethno-linguistic minorities — to receive a range of information and ideas, take particular care to encourage an independent and diverse media.”

When the Committee turned to paragraph 16, which, as the only fully bracketed paragraph in the draft text, was being considered for deletion, Mr. O’Flaherty said several human rights non-governmental organizations had urged its retention.  Among others, a confidential United Nations commenter called not only for retention of the paragraph, which advises that States parties should ensure the public broadcasting services operate in an independent manner, but also its strengthening.

While some Committee members continued to support deletion of the paragraph on the basis that its inclusion could encourage State-controlled media under the guise of independence, a number of other experts argued that the part of the world enjoying independent media was actually quite small, while that part of the general comment would apply to many countries, particularly in the global South.

Stressing that the seizing the media was usually the first action carried out during any modern coup d’etat, Ms. Chanet agreed that the first sentence should be included in the final text.  Nevertheless, she was uncomfortable with the prescriptive and detailed nature of the second sentence.  In response to Mr. O’Flaherty’s argument that, because the construction of the prescriptions was weak, no particular model to guarantee independence was being encouraged, she said the Committee could not set clearly applicable guidelines across the entire spectrum of such a complicated issue.

Following a suggestion to retain the first sentence of paragraph 16 and merge it with paragraph 15, Rafael Rivas Posada, expert from Colombia, stressed that the distinction between the private and public sectors that lay at the heart of paragraph 16 must be preserved.  “Throughout the world, the media was in the hands of the State,” he reminded colleagues, emphasizing that the public media needed to be independent and regulated, and that financial sources must not conspire against their independence.

The Committee eventually agreed to include, as part of paragraph 15, a revised version of paragraph 16 that read: “State parties must ensure that public broadcasting services operate in an independent manner.  In this regard they must guarantee the independent and editorial freedom of these services and the provision of funding to them in a manner that does not undermine independence.”

During the lengthy debate on paragraph 16, Mr. Thelin expressed surprise that commenters from the United Nations were requesting confidentiality, particularly during discussions of a text that addressed transparency.  The Rapporteur reminded him that the identities of the commenters was available in the Committee experts’ information packets and that the request for confidentially was being honoured only in the context of the current open meeting.

The Human Rights Committee will reconvene at 3 p.m. on Thursday, 24 March, to continue discussion of its draft general comment on article 19 of the International Covenant on Civil and Political Rights.

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*     The 2786^th & 2787^th Meetings were closed.

For information media • not an official record