Continuing their project focused on how the United Nations treats freedom of expression, Seth Brooks (2L) and Professor Brauch were joined by Sarah Leiford (1L), Elizabeth Crawford (1L), and Adonis Agha (2L) for Phase II. The second phase of this project with ADF International focuses on how U.N. Treaty Monitoring Bodies (TMBs) and Special Procedures (SPs) are interpreting the right to freedom of expression through general comments, annual reports, and concluding observations.
Under international law, countries are expected to abide by ICCPR Articles 19 and 20 and the 2012 Rabat Plan of Action when deciding whether certain forms of expression may be suppressed. The high threshold for suppressing speech, and the careful balancing ensured by Rabat, promote freedom of expression while addressing concerns about “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” Under ICCPR Article 20, only these forms of advocacy are presumed to be suppressible. Yet some TMBs and SPs work to expand the scope of international consensus, mandating countries to suppress speech that is merely “intolerant,” “stigmatizing,” or targeting groups outside of those protected by Article 20. Furthermore, they seek to expand liability to social media companies for allowing these forms of speech–leaving vague standards the companies are left to interpret independently or face sanctions.
Sarah noted that she was not aware how much countries could influence each other’s standards of free expression. For example, the Committee on the Elimination of Racial Discrimination (CERD) recommended that the State Party of the United Kingdom of Great Britain and Northern Ireland (UK) compose “a media strategy addressing the responsibility of journalists and broadcasters to avoid . . . hate speech . . . in describing minority communities.”[1] By leaving recommendations broadly stated, the Committee can thus encourage ambitious programs affecting aspects of free speech such as criticism or disapproval because the Committee has left it up to the State party to figure out how to meet this recommendation.
At first glance, Sarah thought this seemed to be an appropriate solution to protect the country’s right to establish its own law. But the implications are concerning. When the State party returns with its implemented media strategy, will the Committee members consider the program effective or appropriate? Will the State party be required to crack down even more on the speech of its journalists?
Generally speaking, the TMBs and SPs are more compliant with international law in their recommendations than the U.N. bureaucratic arms were that we researched in Phase I. For many nations, the TMBs and SPs recommend an increase in freedom of expression, especially for the press. Even so, persistent violations and expansions of international legal standards lead to the disturbing conclusion that within the United Nations exists a subgroup of representatives hoping to change international consensus on freedom of expression, leading to more speech suppressed and individual rights destroyed. The SPs specifically hope to add hostility towards gender identity and sex discrimination to Article 20’s prohibited forms of expression. They also view transgender status as “freedom of expression.” This is beyond the scope of ICCPR Article 20 and the 2012 Rabat Plan of Action.
[1] Committee on the Elimination of Racial Discrimination, “Concluding observations on the combined twenty-fourth to twenty-sixth periodic reports of the United Kingdom of Great Britain and Northern Ireland,” page 5, August 22, 2024, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CERD%2FC%2FGBR%2FCO%2F24-26&Lang=en
This post was written by a student at Regent University School of Law. The views expressed in this post do not necessarily reflect those of Regent University, Regent Law School, or the Center for Global Justice.