A conference to mark and critically evaluate 60 years of unconcerted endeavour

The relationship between legally-enshrined protection for the right to freedom of expression and permissible restrictions on the exercise of the right is as complex as it is dynamic. The far-reaching societal impact of controversial cases colours debate about where protection should end and prohibitive or punitive measures should begin. Recent and ongoing examples of prominent controversies at the international level include the cartoons of the Prophet Mohammed, the 'defamation' of religions, Holocaust-denial and advocacy of violence or terrorism to achieve political ends.

This expert conference sets out to examine how the issues, debate and United Nations (UN) standards and approaches have evolved over the years and to assess their adequacy for meeting contemporary challenges to the right to freedom of expression. It is supposed to contribute to the drafting process within the Human Rights Committee of the United Nations of a new General Comment on Article 19 of the International Covenant on Civil and Political Rights (ICCPR) on freedom of expression and information.

1948 was a momentous year for the advancement of human rights protection in general and the right to freedom of expression in particular. That year is properly best remembered for the proclamation by the United Nations General Assembly of the Universal Declaration of Human Rights as "as a common standard of achievement for all peoples and all nations". Article 19 of the Universal Declaration sets out the right to freedom of expression in the following terms:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

However, the UN's commitment to freedom of expression and information (or simply "freedom of information", to use the politico-legal jargon of the time) predated the elaboration of the Universal Declaration on Human Rights. In one of its earliest Resolutions, the UN General Assembly was forthright in its affirmation of the fundamental importance of freedom of information, describing it as the "touchstone" of all other human rights.[1] The main purpose of the Resolution was to call for an international conference on freedom of information. The Resolution led to the convening of a UN Conference on Freedom of Information in Geneva in 1948. The concrete output of the Conference comprised: three draft conventions (most notably a draft Convention on Freedom of Information);[2] draft articles on freedom of information for inclusion in the International Bill of Rights, and no less than 43 Resolutions on different aspects of freedom of information.[3]

The Draft Convention on Freedom of Information was composed of 14 articles, but it was never adopted. Although the text of the draft Convention had been agreed upon in Geneva, it was not opened for signature and ratification there and then. Instead, a political decision had been made to refer the draft text to the UN for approval before opening it for signature by States. It was thought that such a step would lend greater prestige and authority to the draft Convention. The reality was that the subsequent delay gave opponents of the draft Convention time to mobilise and Cold War politics then quickly froze any prospect of progress towards its adoption and ratification.

Formally, the draft Convention remained a recurrent item on the UN General Assembly's agenda for years to come, but in practice it was no longer prioritised. Sporadic interest was shown in the draft text over the years, but the intermittent adjustments of its original content never managed to create enough momentum to get the draft Convention off the ground. Ultimately, it ceased to be even a formal agenda item in the UN General Assembly in the course of the 1970s.

In the meantime and since, the evolution of the protection and promotion of the right to freedom of expression has been shaped by different normative forces:  textual, institutional and procedural.

Article 19 of the International Covenant on Civil and Political Rights (ICCPR) emerged as a standard reference point for safeguarding the right to freedom of expression and has served as a model for many comparable provisions in other treaties, eg. Article 13 of the Convention on the Rights of the Child (CRC). Other leading international treaties also contain provisions on the right to freedom of expression and approach it in ways consistent with their own internal logic and objectives. Thus, relevant provisions of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (i.e., Articles 4 & 5), purport to trammel the scope of the right in the pursuance of the treaty's central objective. Whether synergic or frictional, the interplay between these various legal provisions on freedom of expression have, at all times, significant bearing on how the right is understood and applied in practice.

In 1993, the Human Rights Commission appointed a UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, mandated to gather all relevant information on, and report on, threats to the exercise of the right in practice and its actual violation.[4] In 2008, the Special Rapporteur's mandate was renewed, revised and broadened to include, inter alia and somewhat controversially, the task of reporting on "instances in which the abuse of the right of freedom of expression constitutes an act of racial or religious discrimination".[5] UNESCO has also made an enduring contribution to the development of the right to freedom of expression by explicitly focusing on the importance for democracy, culture and (economic) development of (access to) media and communications technologies.

Sixty years on from the UN's first bold statement of intent as regards the protection of freedom of expression, the time is ripe for stock-taking, impact assessment and strategic planning for the future. This expert conference proposes a suitably ambitious and timely examination of UN standards, reflection on lessons to be learnt from past failures, consolidation of ongoing achievements, and critical thinking about how the standards and mechanisms can be put to better effect, to ensure that the right to freedom of expression is more effective in practice. The timeliness of the conference is further underscored by the fact that the UN Human Rights Committee is currently drafting a new General Comment on Article 19, ICCPR, with the aim of clarifying the scope of the right to freedom of expression under the Covenant. The expert conference will provide a valuable forum in which issues of central importance to the new General Comment will be explored in detail. As such, it could make a viable, if informal, contribution to the preparation of the new General Comment.

It proposes to scrutinise crucial aspects of the right to freedom of expression in the context of UN standards and mechanisms. It necessarily also invites detailed engagement with a range of key issues currently being debated in many countries, including the Netherlands. Those issues include certain perceived tensions between the legally-enshrined and socially desirable limits to the right to freedom of expression - a question that is of acute performance in relation to permissible levels of criticism in public discourse, especially concerning religious beliefs. A related issue is the nexus between the right to freedom of expression and the public policy objective of promoting societal tolerance, including the duties and responsibilities of various actors in public life, such as politicians and the media. The impact of new communicative technologies on the interpretation of existing legal standards is also a preoccupying issue at the national and international levels alike. Leading interpretive texts are considerably dated and fail to take into account the realities and implications of a rapidly changing technological environment (e.g. electronic publishing, Internet, user-generated content/participatory models of production).[6] The instrumental role of the media in realising the right to freedom of expression in practice is also generally underappreciated in leading normative texts.

[1] United Nations General Assembly Resolution 59(1), 14 December 1946.
[2] Draft Convention on the Gathering and International Transmission of News; Draft Convention Concerning the Institution of an International Right of Correction, and a Draft Convention on Freedom of Information.
[3] See further: Final Act, United Nations Conference on Freedom of Information, Geneva, Switzerland, 23 March - 21 April 1948.
[4] UN Commission on Human Rights' Resolution 1993/45 of 5 March 1993.
[5] UN Human Rights Council Resolution 7/36 of 28 March 2008.
[6] For instance, the Human Rights Committee's General Comment 10 on Article 19, ICCPR, was adopted in 1983.