CYIL vol. 14 (2023)

AVITUS A. AGBOR CYIL 14 (2023) in international law. Even though very crisp in the way it was formulated in the ICCPR, the substantive contents of the right to freedom of expression, as well as its functional importance in a democratic society, and political participation in general, have been detailed by the Human Rights Committee. The General Comments on the right to freedom of expression, deliberated upon and published by the Human Rights Committee, can be said to constitute an important legal source on the right to freedom of expression in international law. Article 19(3) of the ICCPR sets out some parameters on the exercise of the right to freedom of expression. It cautions that the “exercise of the rights provided for in paragraph 2 … carries with it special duties and responsibilities.” In consequence, the right to freedom of expression may be subjected “to certain restrictions, but these shall only be such as are provided by law and are necessary”. The instances that would warrant such (national legal protection) are, first, for the respect of the rights or reputations of others; and secondly, for “the protection of national security or of public order ( ordre public ), or of public health or morals.” In effect, the exercise of the right to freedom of expression, encapsulated in Article 19(3) of the ICCPR, may be subjected to some specific and exceptional limitations imposed by a State Party. Such limitations, however, must satisfy a three-pronged test tapped curled from the wording of Article 19(3) of the ICCPR: first, it must be provided for by law. This means that any such national legislation aimed at limiting or restricting the exercise of the right to freedom of expression must be written with sufficient precision or exactitude to enable individuals regulate their conduct. Secondly, such a limitation must be in pursuit or furtherance of a legitimate aim. The legitimate aims spelt in Article 19(3) of the ICCPR are for the respect or reputation of others or the protection of national security or public order, or public health or public morals. Thirdly, the limitation must be necessary in a democratic society. This requirement imposes on the state party the obligation to demonstrate with specificity and in an individualised fashion the following: first, the nature of the threat, and secondly, the necessity and proportionality of the specific action taken by the State Party. 20 The inclusion of those provisions qualifying the right to freedom of expression, and the development and utilisation of a three-fold test to determine the legality and legitimacy of a limitation to Article 19(3) of the ICCPR do convey a simple and unambiguous message: the right to freedom of expression is fundamental but not absolute. 21 International human rights law is reinforced by regional human rights instruments, all of which recognise the right to freedom of expression. 22 Jurisprudence from regional human rights bodies highlights the nature of the right to freedom of expression, its importance in a democracy, and why it must be regulated to foster a culture of respect, peace, and tolerance in diverse societies. Despite the strong regional human rights framework recognising the 20 See, for example, Howie at page 13 and Gunatilleke, G. ‘Justifying limitations on the freedom of expression’ 22 Human Rights Review 91 at page 92. See also O’Flaherty 627–654. 21 Howie page 13; Gunatilleke page 92; and AGBOR, A. A. ‘The Prohibition and Criminalization of Negationists in South Africa: Philosophical Insights and Comparative Perspectives’ 55 Gonzaga Journal of International Law 365 at 373. 22 See, for example, the following regional human rights instruments: the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), as amended by Protocol No. 11 of 11 May 1994, Article 10(1); Inter-American Convention on Human Rights (American Convention); and the African Charter on Human and Peoples’ Rights (Banjul Charter), Article 9.

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