The Committee outlines many new improvements and clarifies issues arising out of obligations.  Importantly, it states that “a reservation to paragraph 1 [freedom of opinion] would be incompatible with the object and purpose of the Covenant,” and a “general reservation to the rights set out in paragraph 2 [freedom of expression] would be incompatible with the object and purpose of the Covenant,” and also asserts that “it can never become necessary to derogate from [the freedom of opinion] during a state of emergency.” [1] This expands the obligations of states, as Article 19 is not listed in Article 4, the article prohibiting the derogation of certain articles even during a state of emergency.

Particularly under the freedom of opinion, the right to change one’s opinion is stressed.  Individuals also have the right to be free from discrimination and harassment as to one’s opinion, and also freedom from coercion in forming or stating an opinion.  

Under the freedom of expression, the Comment outlines the broad types of protected expression including political, cultural, and religious expression, and the broad forms of communication, both written and oral and the vast array of methods of communication including electronic transmission.   The importance of the media to the freedom of expression is stressed, as is state parties’ obligations to encourage free press, including the freedom of movement of journalists  and access to pertinent public and official information.

The Comment also discusses the types of restriction that can be put on these freedoms and the context of their applicability.  States may restrict the freedom of expression in relation to the rights or reputations of others or for the protection of national security or the public order.   These restrictions must pass the test of necessity and proportionality, and must be a part of public law, compatible with the objectives of the Covenant.  

State parties must justify the legal basis for their restrictions, including the balancing of the freedom of expression with other crucial rights.   However, states are cautioned to define “public morals” in a nondiscriminatory fashion and to formulate treason and state secrecy laws in a manner that will generally not impede the freedom of expression.

The Comment also outlines the areas where such restrictions are of concern including certain restriction on political discourse,  defamation laws,  mass media restrictions including restriction on publications and onerous licensing conditions,  counter-terrorism measures,  and freedom of movement.  

Interestingly, the Committee recommends the decriminalization of defamation. It also recommends a careful review of blasphemy law  and memory law.

The General Comment has important ramifications for states because they serve as the Committee’s interpretations of important issues.  As the Committee has the jurisdiction to review state practice,  these interpretations serve as important guidelines for states. 

[1] http://www2.ohchr.org/english/law/ccpr.htm.  The Covenant was adopted 16 December 1966 and entered into force 23 March 1976, in accordance with Article 49. http://www2.ohchr.org/english/law/ccpr.htm . Currently there are 72 signatories and 167 state parties. 

*Laura Heft – an intern at the Helsinki Foundation for Human Rights