Universal Standards and Parochial Concerns

The Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, has proposed that the relationship between freedom of expression and privacy online be investigated by a special commission set up by the United Nations.  He deplored that the United Nations Educational, Scientific and Cultural Organisation (UNESCO), which should naturally be the body undertaking such activities, has not been more proactive on that front.

At the forefront of his concerns are state-lead clampdowns on free expression, like those recently seen in China. This is a serious worry of course, but it is questionable whether it should be UNESCO who takes the lead on this matter. As a body constituted of the representatives of its member states, UNESCO could be criticised as more political than principled. The General Conference and Executive Board, both of which are composed of state representatives, set and execute policy. If we look at other United Nations bodies, such as the UN Human Rights Committee and its replacement body the Human Rights Council, for example, it is easy to see how they have been criticised for letting politics dominate what should be institutions of principle. There is a risk that giving UNESCO the leading role in a drama with such controversial political implications could result in it suffering the same fate.

The trouble comes from the fact that lawyers look upon the organisations of the United Nations as potential sources of law, whether ‘soft law’ or indications of customary law in the form of state practice and opinio juris,  very often forgetting that they are also (perhaps even primarily) political institutions. If Mr Hammarberg’s concern is to ensure that states do not adopt practices that prioritise domestic political interests over liberal principles, the best place to do so is unlikely to be an institution at the mercy of diplomats. Of course, it is possible to argue that pro-free speech states might have a moderating effect on those with restrictive policies within UNESCO itself. However, it must be stressed that the inverse is the case as well. A report from UNESCO that presents free speech as something over which compromise is easily permissible would provide ammunition for those who want to derail traditional protections present in states that would otherwise retain them. In an increasingly globalised world, international standards are becoming more influential in that regard.

In and of itself this might not be a bad thing. The concern however is that if UNESCO can become dominated by states that want to attack free speech, it would be an ideal forum in which to do so on other grounds.

There is currently a United Nations Special Rapporteur on Freedom of Opinion and Expression, a Representative on Freedom of the Media of the Organisation for Security and Cooperation in Europe, a Special Rapporteur on Freedom of Expression for the Organisation of American States and a Special Rapporteur on Freedom of Expression and Access to Information for the African Commission on Human and People’s Rights. A solution to avoid the politicisation of the issue may be to develop doctrine relating to freedom of expression over the internet through a join consultation of these experts. This would allow for a more detailed report, covering a range of issues, rather than opting for more simplistic UNESCO guidelines. This report could then stand on its own as the basis for an international standard, free from political compromise and the influence of parochial bias.

With this recourse already available to us, it seems unnecessary to risk turning a matter that should be one of juridical principle over to the ravenous jaws of international politics.

ALEXANDER GREEN

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