journey to establishing the primacy of human rights in the face of tyranny and abuse of the law. This was the culmination of a long process of searching for and formulating fundamental rights that would allow society to improve human dignity following all the violence of the twentieth century, primarily because of the two world wars that occurred between 1914 and 1945. The fundamental idea behind the UDHR was to establish major human rights that would impede the violations of human dignity witnessed in the twentieth century.
This is the meaning of the UDHR, which brings together the principal fundamental rights that, at the time, constituted the essence of human dignity. The declaration had a clear ethical force, even if it was not legally binding. The importance of its contents and the moral force of the rights declared therein led it to influence legislation adopted by the UN’s member states. This legislation may have differed somewhat from state to state, but its purpose in all cases was to promote human rights within each country.
One of those rights, which was doubtless quite important given the rapid development of media at the time, was the right to freedom of expression, which, until that point, had been the focus of the fight for the right to freely express opinions and ideas. It was time – and this is also the perception from the declaration – to move from fighting for freedom of expression, as people had in centuries past, toward turning that freedom into a fundamental right. The moment was propitious to grant expression free of government interference as an essential part of society, the status of fundamental right. In this way, the universal right to freedom of expression emerged.
Article 19 of the declaration states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” This article establishes the basis for communication rights, the right to communication for all citizens of the world through universality of subject, medium, content, and geographic location. The development of this right was a significant achievement. It amounted to a qualitative leap that allowed the creation of communication rights as a human right that should be respected and protected by the state.
This leap would gradually become more effective as national legislatures incorporated the UDHR’s principles into their own laws and constitutions. Indeed, the goal of the declaration was to serve as the ethical and legal source for the development of national and supranational legal instruments that would make communication rights fundamental.
International Agreements on Human Rights: The International Covenant on Civil and Political Rights
The UDHR is one of several universal declarations and international agreements that aim to strengthen the existence of human rights in various fields of endeavor. Just within the realm of communication, which is the focus of this volume, two agreements followed the UDHR: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These declarations were adopted by the UN General Assembly in its Resolution 2200 on December 16, 1966, when the agreements were opened for ratification by member states. The agreements ultimately entered into force on March 23, 1976.
One of the disadvantages of the UDHR is its nonbinding nature in relation to the national legislation of member states. From the start, it was more an ethical declaration; it was important, but did not have legal weight because it could not be enforced. The Human Rights Committee, as Subedi (2017) points out, has a certain moral authority, but it is not a guarantor. Following the first announcement of the UDHR, many set about translating its contents into a unified international treaty in order to give it full legal backing. This would not be achieved until 18 years later, with the approval of the International Covenant on Civil and Political Rights in 1966.
Initially, the idea was to create a single treaty that reflected the unitary, indivisible character of the human rights enumerated in the UDHR. However, confrontations among the UN member states, which were divided into classical capitalist and Marxist camps, necessitated the splitting of the rights into two covenants in 1948. The first agreement, which was ratified by a larger number of UN member states, deals with civil and political rights and establishes oversight and monitoring mechanisms for ensuring its implementation. The second agreement, covering economic and social rights, is more general and does not stipulate adequate monitoring mechanisms.
Perhaps the most important aspect of these two covenants is that they are legally binding on the states that have ratified them. Therefore, they represent a transition from ethical declarations of human rights to legal definitions of them. For this reason, these covenants have an importance that is similar to or even greater than that of the UDHR in many parts of the world, particularly in English-speaking countries. These two covenants, together with their supporting protocols and the UDHR, make up what is termed the International Charter of Human Rights.
It is instructive to examine the first of the agreements, the Covenant on Civil and Political Rights, whose importance is expressed in its Preamble. (The two covenants’ preambles are the same, reflecting the desire for unity between the two agreements.) The third paragraph recognizes that:
in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.
Article 2 clearly establishes the legally binding nature of the covenant’s contents:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Two articles of this covenant are fundamental from the perspective of information and provide a detailed, extensive endorsement of Article 19 of the UDHR. Article 18 of the covenant establishes:
1 Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2 No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3 Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4 The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Though this article refers fundamentally to religion, I quote it because it describes freedom of thought as a right of all people and as an essential part of the freedom of opinion and of the freedom to manifest the beliefs mentioned in the third point. It is therefore clearly related to freedom of expression.
Article 19 declares:
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 para. 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:For respect of the rights or reputations of others;For the protection of national security or of public order (ordre public), or of public health or morals.
Even without detailed interpretation of the article’s