International Human Rights Law: Substantive Rights...(b) For the protection of national security or...

Richard Hustad, Norwegian Centre for Human Rights, [email protected] © 2008, All Rights Reserved

International Human Rights Law: Substantive Rights (HUMR 5120/4120/1120)

Lecture 2The Freedom of Expression17 October 2008

Richard Hustad, Norwegian Centre for Human Rights, HUMR 5120/4120/1120, Lecture 2: Freedom of Expression© 2008, All Rights Reserved

Recommended Background Reading

Thomas Buergenthal, et. al., International Human Rights in a Nutshell (New York: WestPublishing Company, 3rd ed., 2002). 450 pp. ISBN 978-0314260147.

Henry Steiner, et. al., InternationalHuman Rights in Context (Oxford University Press, 3rd ed., 2008). 1492 pp. ISBN 978-0199279425.


Substantive Right of the Day:

The Freedom of Expression


Outline of Class• Focus: Freedom of Expression

– General definition of the right– Procedure with the right– Notable issues within the context of the right

• Format: Discussion– Participatory discussion (normative requirement)– Ask questions or add ideas and comments at any time– Question everything (reading, classmates, instructor…)

• Expected Outcome: Value added– Introduction to the right– Working through the most contemporary issues with the right (but

not covering every aspect of the reading)

• Reminder:


The Value of ’Expression’

• ’Innate value’ (benefits just by having expression)– Human need for social interaction

• ’Instrumental value’ (other benefits resulting from expression)– A means of communication between masses and government

• Supports popular sovereignty (masses as the state)– A means of communication among masses—John Stuart Mill’s

”marketplace of ideas”• Promotes inclusion and prevents extremism• Promotes knowledge enhancement (sum greater than parts)

– A means for individuals to participate in society• Promotes equality and non-discrimination

– A means to gain access to valuable information• Promotes equality, especially among economic classes


The Danger of ’Expression’

• Hurt the reputation of individuals– Incite beliefs against individuals which are not true (defamation:

libel & slander)

• Hurt the physical body of individuals– Incite physical violence against an individual

• Hurt the ’physical body’ of a state– Incite or plan physical violence against national security

• Interfere with the equality among individuals– Incite discrimination against individuals


Primary Source of International Lawfor Freedom of Expression:CCPR, Article 19

1. Everyone shall have the right to hold opinions without interference. 2.Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public),

or of public health or morals.

CCPR, Art. 201. Any propaganda of war shall be prohibited by law.2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

(See also UDHR, Art. 19 and, indirectly, UN Charter, Art. 55 & 56)


Three (Four) Freedomsin Freedom of Expression

• Freedom of ’Opinion’’Belief’ ’Conscience’– Right to believe

whatever you want• (Manifest Opinions)

– Attached to a religion or belief system

• Right to ’Seek’ & ’Receive’– Right to be ’informed’– ”Right to listen” (USA)

• Right to ’Impart’– Usually ’Freedom of

Expression’

Passive

(Passive/Active)

Passive(Active)

Active

Unlimited

(Unlimited/Limited)

Limited

Limited

ACTIVE/PASSIVEFREEDOM

LIMITED/ UNLIMITED

DEGREE

PUBLIC/PRIVATESPHERE

Private

(Private/Public)

Public

Public


Art. 19 (1): Opinion

• Art. 19 (1)– ”right to hold opinions without interference.”

• CCPR/HRC GC 10, para. 1– ”This is a right to which the Covenant permits no exceptions or

restrictions.”

• Former HRC Chair Andreas Mavrommatis– The absolute nature of the right ceases once one airs or otherwise

manifests one’s opinions.


Art. 19 (1): OpinionMpaka-Nsusu v. Zaire, 1983 HRC 157• 8.1 The Human Rights Committee...hereby decides to base its

views on the following facts, which have not been contested by the State party.

• 8.2 Mr. Andre Alphonse Mpaka-Nsusu is a Zairian national at present living in exile. In 1977, he presented his candidacy for the presidency of Zaire in conformity with existing Zairian law. His candidacy, however, was rejected. On 1 July 1979, he was arrested and subsequently detained in the prison of the State Security Police without trial until 31 January 1981. Afterbeing released from prison he was banished to his village of origin for an indefinite period. He fled the country [in] 1983.

• 10. The Human Rights Committee...is of the view that these facts disclose violations of the Covenant, with respect to: […] Article 19, because he suffered persecution for his political opinions...


Art. 19 (1): OpinionMika Miha v. Equatorial Guinea, 1990 HRC 414

• 6.8 In respect of issues under article 19, finally, the Committee notes that the State party has not refuted the author's claim that he was arrested and detained solely or primarily because of his membership in, and activities for, a political party in opposition to the regime of President Obiang Nguema. In the circumstances of the case, the Committee concludes that the State party has unlawfully interfered with the exercise of the author's rights under article 19, paragraphs 1 and 2.


Art 19 (1): OpinionKang v. Republic of Korea, 1999 HRC 878• The author was a suspected sympathizer with the North Korean

communist regime. He was convicted of ”subversive activitiesthat were prejudicial to the national security of the R of K.”

• During his incarceration, he was subjected to the ”ideologyconversion system,” attempting to convert him from his allegedcommunist opinions.

• Because he continually refused to ’convert,’ he was held in solitary confinement. This lasted for 13 years.

• 7.2 the ”oath-of law-abidance system […] is applied […] to alter the political opinion of an inmate by offering inducements ofpreferential treatment within prison and improved possibilities ofparole.” There was a violation of Art. 19 (1).


Limitations on FreedomsTest for Any State Measure Limiting an Opinion

• Rule:

– Any limitation on Freedom of Opinion is always a violation ofinternational law.

• Fictional Examples:

– It shall be a crime punishable by a fine of up to 5000 kroner or imprisonment of up to 30 days for any citizen or resident of Norwayto believe that the holocost did not exist.

– No person shall be recognized under the law as being married, nor receive the privileges appertaining thereto, if, at the time of marriage, that person is not of the belief that marriage is defined solely as thevoluntary union of one biological male and one biological female.


Art. 19 (2): ”Seek”& ”Receive”Freedom to Access Information• Gauthier v. Canada, 1995 HRC 633

– The author is the publisher of a small newspaper covering theCanadian Parliament, the National Capitol News

– The author was denied press credentials for the Parliament whichwould have given him access to the press gallery, where one cantake notes during sessions, and a mailbox where he would receiveall press releases.

– Canada countered that the author could sit in the public galleryand, if he wanted to take notes, watch the proceedings on a live Internet feed. Furthermore, all press releases were posted online one day after distributed at the Parliament.

• Holding?– The credentials procedure fails to ensure there will be no arbitary

exclusion from access to the Parliamentary media facilities.– There is a violation of Article 19 (2).

• USA jurisprudence: receipt of information is the essence of the right


Art. 19 (2): ”Impart”Ballantyne v. Canada, 1989 HRC 385• A law in French-speaking Quebec, Canada forbade

all commercial advertising in a language other thanFrench.

• Author claimed this was a violation of Article 19 (2) in the context of an advertisement for his place ofbusiness.

• Canada claimed that commercial speech was not protected under Article 19.

• Holding?– ”Article 19 (2) must be interpreted as encompassing every form of

subjective ideas and opinions capable of transmission oto others, which are compaitible with article 20 of the Covenant, of news and information, of commercial expression and artistic expression.”(para. 11.3)


Art. 19 (2): ”Impart”Is Graffiti Imparting Information?• S.G. v. France, 1988 HRC 347 and• G.B. v. France, 1989 HRC 348

– Authors ’defaced’ road signs in Bretagne (France) which werewritten in French. They added words in Breton that wereequivalent to the French words already on the signs. Both weremembers of an organization advocating road signs in both Frenchand Breton.

– France asserted that: ”Defacing roadsigns cannot, under anycircumstances, be construed as a manifestation of the freedom ofexpression, within the meaning of article 19, paragraph 2.” (para. 4.3)

• Holding?– The HRC was of the view that this was not imparting information:

the “defacing of roadsigns does not raise issues under article 19”(para. 5.2).


Art. 19 (2): ”Expression””Bong Hits 4 Jesus” Case


Art. 19 (2): “Expression”“Fuck the Draft” Case


Art. 19 (2): ”Impart”Laptsevich v. Belarus, 1997 HRC 780

• Facts:– 3.1 ”The author was sanctioned for not complying with the

requirements set out in article 26 of the [… Belorussian] Press Act […].” The Act required that every printedpublication must contain information such as name ofpublication, full name(s) of authors, print run, index number, registration number, etc.

• Holding:– 8.1 ”In the view of the Committee, by imposing these

requirements on a leaflet with a print run as low as 200, theState party has established such obstacles as to restrict theauthor’s freedom to impart information, protected by article19, paragraph 2.


Art. 19 (2): “Impart”Obstacles to Effectiveness


Art. 19 (2): ”Impart”Kivenmaa v. Finland, 1990 HRC 412• At a demonstration, the author distributed leaflets and unfurled a

banner criticizing a visiting Head of State.• 7.4 ”[…] the State party argues that a demonstration necessarily

entails the expression of an opinion, but, by its specific character, is to be regarded as an exercise of the right of peaceful assembly. In this connection, the State party argues that article 21 of theCovenant must be seen as lex specialis in relation to article 19 […].”

• 9.3 ”The right for an individual to express his political opinions […] forms part of the freedom of expression guaranteed by Article 19.”

• 7.2 ”[…] the right to freedom of expression does not depend on themode of expression or on the contents of the message thusexpressed.”


Art. 19 (2): Freedom of the Press• CCPR/HRC GC 10 (2)

– ”because of the development of modern mass media, effectivemeasures are necessary to prevent such control of the media as would interfere with the right of everyone to freedom of expression[…].”

• Concluding Observations of the HRC: Lebanon(1998), para. 24– Provisions of the Media Law do not appear to be consistent with

Article 19 because there are not reasonable and objective criteriafor the award of licenses.


Art. 19 (2): Freedom of the Press

• Concluding Observations of the HRC: Lesotho (1999), para. 23– The HRC is concerned that there is ”unfettered discretionary

power to grant or refuse registration to a newspaper, in contravention of article 19.”

• Concluding Observation of the HRC: Kuwait (2000), para. 36– The HRC expressed concern over ”penal proceedings against

journalists, requiring them to; […] reveal their sources.”


Art. 19 (2): Freedom of the Press

• Concluding Observations of the HRC: Italy (1995)– 10. ”The Committee is concerned about the excessive

concentration of the mass media in a small group of people.” Thismay effect the enjoyment of article 19 by the population at large.

– 17. The State should implement ”measures to ensure impartialallocation of resources as well as equitable access to such media, and of adopting anti-trust legislation regulating mass media.”


Art. 19 (3): Permissible RestrictionsAll Restrictive Measures must Meet this Test• Provided by law• Necessary in order to protect national security, the rights

and reputations of others, public order, public health, or morals– Legitimate Objective

• Mukong v. Cameroon, 458 HRC 1991, para. 9.7: the HRC willindependently evaluate the legitimacy of the objective of a measure.

– Proportional to ’necessary’ protection• Faurisson v. France, 550 HRC 1993, concurring opinion, para. 8:

’necessary’ imports ”an element of proportionality” into article 19 (3)


Can a State take Measures against an Individual’s Communication?

Is theState not yet a

party to theCCPR & OP?

Iscommunication

within scopeof Art. 20?

Are therevalid

reservationsto Art. 19?

A rightexists

pursuant tothe CCPR*

Is therea valid

restriction(limitation)?

YES ?

PROHIBITIONOF CONDUCTOK, DESPITE

RIGHT

NO ?

CONDUCTCANNOT BEPROHIBITED

YES ?

PROHIBITIONOF CONDUCTOK, THERE IS

NO RIGHT

Is there avalid

derogationto Art. 19?


Burden of Proof in Article 19

• Author has presumption of violation after production of sufficient material to establish a prima facia case– Jaona v. Madagascar, 1982 HRC 132

• 12.1 The Human Rights Committee...hereby decides to base its views on the following facts, which appear uncontested, except for denials of a general character offering no particular information or explanations.

• The state must contest the claims made by the author by producing evidence (beyond simple denials) and persuading the HRC that the evidence establishes a valid restriction– Mpaka-Nsusu v. Zaire, 1983 HRC 157– Mika Miha v. Equatorial Guinea, 1990 HRC 414


Burden of Proof in Article 19

• Initial burden of production: on author• Secondary burden of production and burden of

persuasion: on state

IndividualAuthor:

Allegation offacts statinga prima facia

case

HRC:Decision onadmissibility(whether aPFC exists)

State:Must justify

the restrictionon the right

HRC:Decision onviolation of

a right

Burden ofProduction

Burden ofProduction &

Persuasion


Burden of Proof:M.A. v. Italy, 1981 HRC 117• Facts:

– M.A. was convicted of ”reorganizing the dissolved fascist party” which wasprohibited by the Italian penal law of 20 June 1952.

– M.A. claimed to the HRC violations under article 19 (1) and (2) alleginghow this state measure limited his freedom of opinion and expression

– Italy conceded that the measure was a limitation of Article 19, butaffirmatively claimed that the legislation was justified by articles 5 and 19 (3) because the fascist party wished to ”eliminate democratic freedoms and establish a totalitarian regime.”

• Question:– Should this case be determined on admissibility or on the merits?

• Holding?– Case held to be inadmissible. Procedurally, was this correct?– The Case should have been admissible and gone to merits:

• Author had the relevant rights• Article 19 (3) was a restriction on these rights (which required

additional information about the author’s party activities and the detailsof the state legislation prohibiting them prior to an HRC decision)


Burden of Proof:J.R.T. and the W.G. Party v. Canada, 1981 HRC 104

• Author found guilty of violating the Canadian Human Rights Act by exposing people to hatred over thetelephone by reason of religion or race (anti-Semitism).

• Author claimed a violation of CCPR, Art. 19 (2)• Canada claimed it was its obligation to act in this

instance because of CCPR, Art. 20.• Holding?

– HRC determined case was inadmissible based on state obligationsunder Article 20 (2).

– 20 (2): ”Any advocacy of national, racial or religious hatred thatconstitutes incitement to discrimination, hostility or violence shallbe prohibited by law.”

– Anything under 20 (2) are non-rights: they are state obligations


Art. 20 (2): ‘Racial Hatred’L.K. v. The Netherlands, 1991 CERD 4• The author was a resident of The Netherlands. He was an

ethnic minority in that state.• When viewing a house for which a lease had been offered to

him, the author was met by a protest of 20 neighbors who chanted “no more foreigners” and threatened to set the house on fire if the author accepted the lease and moved in. The neighbors subsequently submitted a signed petition to local authorities demanding the author be excluded.

• The author instituted criminal proceedings against the neighbor,but they were dismissed at all levels.

• Holding?– The remarks and threats to the author “constituted incitement to

racial discrimination and to acts of violence against persons ofanother colour or ethnic orgin” (para. 6.3).


Art. 20 (2): ‘Racial Hatred’Hagan v. Australia, 2002 CERD 26• A sports stadium in Australia was named after a white local

sports hero in 1960 who had the nickname “nigger,” apparently after a brand of shoe polish called “Nigger Brown Shoe Polish.”

• The stadium name was the “E.S. Nigger Brown Stand.” Signs and local custom often referred to it as the Nigger Stand.

• Holding?– “[T]he Committee considers that the use and maintenance of the offending

term can at the present time be considered offensive and insulting, even if for an extended period it may not have necessarily been so regarded. The Committee considers, in fact, that the Convention, as a living instrument, must be interpreted and applied taking into consideration the circumstances of contemporary society. In this context, the Committee considers it to be the its duty to recall the increased sensitivities in respect of words such as the offending term appertaining today.”


Art. 20 (2): “Racial Hatred”Is this presently considered offensive and insulting?


Art. 19 (3): ”Provided by Law”Burden of Production• Luciano Weinberge Weisz v. Uruguay, 1978 HRC 28

– Not specifically an Article 19 case (numerous violations stemming from arrest for membership in political party, to torture and unfair trial)

– Uruguay countered simply that its action was taken pursuant to domesticlaw, without further submissions of detail.

– The HRC was of the view that Uruguay was required to ”enclose copies of any court orders or decisions of relevance to the matter under consideration.”

• Laptsevich v. Belarus, 1997 HRC 780– State must look at each criteria for ”provided by law,” including both

explaining the law and explaining the application of the law to the author in the particular case.

• General R of L: To rebut presumption of a violation when a restriction has been imposed, the state must:– Provide details of the law– Explain the actions that constitute the offense or fall within scope of the law– Explain the application of the law in the particular case


Art. 19 (3): ”Provided by Law”What is ’Law’?• Faurisson v. France, 550 HRC 1993

– Statute (civil law)– Statute as interpreted by the judiciary (common law)

• Gauthier v. Canada, 633 HRC 1995, para. 13.5– Parliamentary privilege (informal state regulations)


Art. 19 (3): ”Provided by Law”What is ’Law’?• Leonardus J.M. de Groot v. the Netherlands, 578 HRC 1994

(inadmissibility decision)– A law restricting a CCPR right must not be so vague and broad-

ranging that one could not reasonably foresee their actions as criminal (see also CCPR, Art. 15—prohibition of ex post factolegislation).

• See Sunday Times v. UK, ECHR (26 April 1979)– 49. ”A norm cannot be regarded as a ’law’ unless it is formulated

with sufficient precision to enable the citizen to regulate his conduct. He must able […] to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”


Art. 19 (3): ”Necessary”• CCPR, Art. 12 (3)

– ”The [CCPR] rights shall not be subjected to any restrictions except thosewhich are […] consistent with the other rights and freedoms recognized in the present Covenant.”

• CCPR/HRC GC 10 (4)– ”when a State party imposes certain restrictions on the exercise of freedom

of expression, these may not put in jeopardy the right itself.”• M.A. v. Italy, 1981 HRC 117

– A restriction is valid when it was ”clearly necessary […] in a democraticsociety for the protection of” one of the elements articulated in CCPR, Art. 19 (3)

• Toonen v. Australia, 1992 HRC 488– ”Even interference provided for by the law should be in accordance with

the provisions, aims, and objectives o f the Covenant and should be, in any event, reasonable in the circumstances.”


Art. 19 (3): ”Necessary””Legitimate Objective”• Mukong v. Cameroon, 458 HRC 1991

– 9.7 […] the legitimate objective of safeguarding and indeedstrengthening national unity under difficult political circustancescannot be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights; in thisregard, the question of deciding which measures might meetthe ’necessity’ test in such situations does not arise.


Art. 19 (3) (a): “Rs & Reps of Others”Faurisson v. France, 1993 HRC 550• In France, the Gayssot Act made it an offence to contest the existence

of the category of crimes against humanity as defined in the London Charter of 8 August 1945, on the basis of which Nazi leaders were tried and convicted by the International Military Tribunal at Nuremburg in 1945-46. (para. 2.3)

• The author submits that, in essence, the Gayssot Act promotes the Nuremburg trial and judgment to the status of dogma, by imposingcriminal sanctions on those who dare to challenge its findings and premises. (para. 2.3)

• The author was a university professor who did not challenge the Holocaust per se, but that there were no gas chambers and the number of deaths was greatly exaggerated.

• Holding?– “[T]he rights for the protection of which restrictions on the freedom of expression are

permitted by article 19, paragraph 3, may relate to the interests of other persons or to those of the community as a whole. Since the statements made by the author, read in their full context, were of a nature as to raise or strengthen anti-semetic feelings, the restriction severed the respect of the Jewish community to live free from fear of an atmosphere of anti-semitism. The Committee therefore concludes that the restriction of the author’s freedom of expression was permissible under article 19, paragraph 3 (a), of the Covenant.” (para. 9.6)


Art. 19 (3) (a): “Rs & Reps of Others”(or Art. 20 (2): religious hatred/incitement”)Monty Python’s Life of Brian


Art. 19 (3) (a): “Rs & Reps of Others”(or Art. 20 (2): religious hatred/incitement”)


Art. 19 (3) (a): “Rs & Reps of Others”(or Art. 20 (2): religious hatred/incitement”)The Mohammed Cartoons


Art. 19 (3) (a): “Rs & Reps of Others”(no Art. 20 (2) because limited only to national, racial or religious hatred/incitement”)


Art. 19 (3) (b): ”National Security”Kim v. Republic of Korea, 1994 HRC 574 (facts)

• The author was convicted under the ’National Security Law’ for expressing opinions sympathetic to an ’anti-State organization’ (North Korea).

• 10.6 According to the State party, it is obvious that the author’sarguments are the same as that of North Korea, and that his activitiesthus both helped North Korea and followed its strategy and tactics. The State party agrees that democracy means allowing differentvoices to be heard but argues that there should be a limit to certainactions so as not to cause damage to the basic order necessary for national survival. The State party submits that it is illegal to produce and distribute printed materials that praise and promoteNorth Korean ideology and further its strategic objective to destroy the free and democratic system of the Republic o f Korea.It argues that such activities, directed at furthering these violent aims, cannot be construed as peaceful.


Art. 19 (3): ”National Security”Kim v. Republic of Korea, 1994 HRC 574 (holding)• 12.4 […] the Committee has to consider whether the author’s political

speech and his distribution of political documents were of a nature to attract the restriction allowed by article 19 (3) namely the protection ofnational security. It is plain that North Korean policies were well knownwithin the territory o f the State party and it is not clear how the(undefined) ’benefit’ that might arise for the DPRK from thepublication o f views similar to their own created a risk to nationalsecurity, nor is it clear what was the nature and extent o f any suchrisk. There is no indication that the courts, at any level, addressed thosequestions or considered whether the contents of the speech or thedocuments had any additional effect upon the audience or readerssuch as to threaten public security, the protection of which would justifyrestriction within the terms of the Covenant as being necessary.

• 12.5 […] the State party has failed to specify the precise nature o f thethreat allegedly posed by the author’s exercise of freedom of expression[…]


Art. 19 (3): ”National Security”

• Mukong v. Cameroon, 458 HRC 1991– The author is an advocate of multi-party democracy. He has

spent years in prison and experienced his books banned.– 6.7 [The State] contends that the exercise of the right to

freedom of expression must take into account the politicalcontext and situation prevailing in a country at anypoint in time: since the independence and reunification ofCameroon, the country’s history has been a constant battleto strengthen national unity […].

– 9.7 The Committee considers that it was not necessary to safeguard an alleged vulnerable state of national unity by subjecting the author to arrest, continued detention […]. [T]he Committee concludes that there has been a violationof article 19 of the Covenant.


Art. 19 (3): ”National Security”• Sohn v. Republic of Korea, 1992 HRC 518

– Author is a member of a solidarity forum for trade unions. He wasconvicted of making a public statement supporting a strike at theDaewoo Shipyard Company, violating an Act prohibiting third-partyinterference in labor disputes.

– Korea asserted that the third-party prohibition was necessary for national security because of the particular situation in the Korean labormovement, where ideoligical goals were used to allegedly manipulateand instigate workers, including the idea of a proletarian revolution.

– Korea also asserted that a potential national labor strike was a national security issue.

– 10.4 […] The Committee considers that the State party has failed to specify the precise nature o f the threat [posed by the author’sstatement] and finds that none o f the arguments advanced by theState party suffice to render the restriction […] compatible withparagraph 3 of article 19.


Art. 19 (3): ”National Security”Walter Wolfgang at 2006 UK Labour Conference


Art. 19 (3): ”National Security”Terrorism Legislation• The UK Terrorism Act of 2006

– Prohibits the ’encouragement,’ ’glorification,’ and ’justification’ of terrorism: offense of ”direct or indirect encouragement or other inducement” ofterrorism

– 2005 Home Office Policy (Press Release 124/2005, 24 August 2005): expulsion or deportation of non-UK citizens for justifying or glorifyingterrorism

• The EU Terrorism Law– Creates a new category of criminal offence: provocation to commit

terrorism which applies to any statements which create a ’danger’ ofterrorist acts being committed.

– ”Public provocation to commit a terrorist offense means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of [a terrorist offence], where such conduct, whetheror not directly advocating terrorist offenses, causes a danger that one or more such offenses may be committed.”


Art. 19 (3): ”Public Health”Baban v. Australia, 2001 HRC 1014

• Para. 6.7– Author was a detainee in an immigration detention facility who

participated in a hunger strike.– He was removed from one facility and brought to another because

of his participation in the strike.– HRC held that removal complied interfered with article 19 (1), but

that it complied with 19 (3) owing to concerns about the dangerposed by the hunger strike to ”the health and safety of detainees, including young children.”


Art. 19 (3) (b): “Public Morals”Hertzberg v. Finland, 1979 HRC 61• The authors have a regular radio and TV series which was

censored due to homosexual content.• The censorship was to comply with a Finnish law prohibiting

publicly engaging in or encouraging acts “violating sexual morality” (para. 2.1)

• Finland states that the law “reflect[s] prevailing moral conceptions in Finland as interpreted by Parliament and by large groups of the population.” (para. 6.1)

• Holding?– “Public morals differ widely. There is no universally applicable common

standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities.” (para. 10.3)

– The Committee “cannot question the decision of the responsible organs of the Finnish Broadcasting Corporation.” (para. 10.4)


Art. 19 (3) (b): “Public Morals”Delgado Paez v. Colombia, 1985 HRC 195

• Author was a public school teacher on the subject of religion in Colombia

• Author alleged his academic freedom to choose how to teach religion was restricted by the State.

• Holding?– Because of the special relationship between Church and State in

Colombia, […] the Committee finds that the requirement, by the Church, that religion be taught in a certain way does not violate Article 19.


”The Virgin Mary””Piss Christ”

Art. 19 (3) (b): “Public Morals”Does this Art Violate Public Morals?


Limitations at the United NationsHuman Rights Council

http://www.youtube.com/watch?v=uhWgZu6tcZU

(begin at 3:00)


© 2008• This presentation is the copyright of Richard Hustad.• All rights are reserved. There is no claim to any of the photographs,

illustrations, or quotations—all of which are part of the public domain.• Except for the quotation of short passages for the purposes of criticsm and

review, no part of this publication may be represented, reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior writtenpermission of the author.

• Permission is expressly granted for educational or any other not-for-profitpurpose as long as credit is attributed according to contemporary methods andthe author is notified in writing.

Contact Info:

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E-mail: [email protected]: NCHR Room 444

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