Remarks by Michael O'Flaherty

By O'Flaherty, Michael | Proceedings of the Annual Meeting-American Society of International Law, Annual 2012 | Go to article overview

Remarks by Michael O'Flaherty


O'Flaherty, Michael, Proceedings of the Annual Meeting-American Society of International Law


While we try to avoid suggesting a hierarchy of human rights, it is necessary to acknowledge the exceptional significance of freedom of expression--at once a crucial right in itself and also necessary for the enjoyment of so many other rights, be they civil, political, economic, social, or cultural. It is truly a "meta-right." Given its importance, it is to be expected that freedom of expression is perennially subject to an impressive array of threats and challenges. The Human Rights Committee, in its supervision of the implementation of the relevant provision (Article 19) of the International Covenant on Civil and Political Rights, has engaged with many of these contexts for the violation of the right. The Committee, across its main functions--the review of state party reports and the consideration of individual communications--and with regard to countries worldwide--has sought to protect media space, political speech, and artistic and other expression. It has considered the legitimate scope of such restrictions as laws on defamation, sedition, treason, lese majeste, and blasphemy. It has also dealt with such intolerable extinction of expression as the harassment, torture, imprisonment, and killing of journalists and human rights defenders. In recent years the Committee has engaged with the new forms of expression, including those that employ the new Internet communication technologies.

Given the prominence of freedom of expression in the work of the Human Rights Committee, it decided in 2009 that it was time to draft a new general comment on Article 19. There was already a general comment from 1983, but that is a brief text that says little to contemporary concerns and, of course, does not reflect the almost 30 years of subsequent Committee practice.

The practice of the drafting of general comments is now widespread among the UN human rights treaty bodies, although they do not all share a common understanding of the purpose or status of these instruments. For the Human Rights Committee the position is clear. The adoption of the comments is specifically mandated by Article 40 of the Covenant, and the Committee intends that they constitute authoritative analysis of the provisions of the treaty. This analysis is based principally on the experience of the Committee in applying the particular provisions that are at issue. The Committee considers that general comments carry considerable legal authority, adopted as they are by the body that is mandated to supervise implementation by states of the Covenant. The general comment on Article 19 is the Committee's 34th.

The development of the instrument took some two years. I was appointed as rapporteur or principle drafter and submitted a first draft in 2009 that was then subject to a one-year review, a "first-reading," by the Committee. The review took place in public, although external comments were not sought at that first stage of the process. The first-reading concluded in October 2010, and I was gratified that my original text had been left more or less intact, albeit with some adjustments. The text was then put for public comment.

The Committee was startled to receive a very great number of recommendations--some 350 drafting proposals, contained in over 80 submissions. These came from states, civil society, academics, and UN Human Rights Council special rapporteurs. Curiously, no other treaty body made a submission. Notable among the state submissions was a detailed one from the United States. As far as I know, this is the first time that the U.S. has commented on a draft general comment of the Human Rights Committee--previous submissions having been made subsequent to the adoption of the text. The innovation suggests a new willingness by this state party to accept the utility of general comments. The second draft was considered by the Committee during 2011, with the final text being adopted in July 2011. The adopted text did reflect some, but by no means all, of the submitted proposals, although the second reading did strengthen the document in some regards. …

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