International Instruments

for the Protection of Journalists

Dr Ioannis Kalpouzos

Lecturer in Law,

City Law School, City University London

I. STRUCTURING THE ENQUIRY

- General vs Specific rules/instruments

- Binding vs non-binding instruments

- International vs regional

- More and less intrusive enforcement mechanisms

- Human Rights & other legal regimes

- Ultimately, identifying the ideal structure for protection

GENERAL INSTRUMENTS AND SUBSTANTIVE NORMS

Existence of substantive norms across general human-rights instruments

1. General international law instruments

Binding Human Rights instruments

UN Covenant on Civil and Political Rights

European Convention on Human Rights

EU Charter of Fundamental Rights

American Convention of Human Rights

African Charter on Human and People’s Rights

Arab Charter on Human Rights

• right to life

• right to personal liberty and integrity

• freedom from torture

• freedom of expression

• right to an effective remedy

POSITIVE & NEGATIVE SUBSTANTIVE OBLIGATIONS

1. General international law instruments (cont’d)

Scope of provisions as interpreted by monitoring bodies:

Negative obligations: refrain from

• deliberate killings

• ill-treatment

• unlawful arrest

• interferences having a chilling effect on all media operators/citizenry at large

Positive obligations:

conduct police/ military operations in such a way as to minimize loss of life

adopt all necessary legislative etc. measures to protect journalists against third-party

violence/ intimidation

prompt and effective investigations into suspicious deaths or allegations of torture

provide effective remedy to victims – identify and prosecute those responsible

NON-BINDING INSTRUMENTS: BOTH GENERAL AND SPECIFIC

1. General non-binding international law instruments (cont’d)

e.g. UN General Assembly: Declaration of Basic Principles of Justice for Victims of Crime and Abuse

of Power

2. Non-binding instruments specific to the protection of journalists

e.g. Human Rights Council: Resolution 12/16 ‘Freedom of opinion and expression’ (2009)

UNESCO: Resolution 29 ‘Condemnation of violence against journalists’ (1997)

UNESCO: Medellin Declaration Securing the Safety of Journalists and Combating Impunity (2007)

3. NGO-promoted instruments

Reporters Without Borders: Declaration on the safety of journalists and media personnel in situations

involving armed conflict (2003)

- Such instruments contribute to standard-setting, but operate only incrementally

SOME GENERAL ISSUES OF APPLICABILITY AND APPLICATION

Limits in the applicability and application

• Varied ratification

• Varied development of legal detail, specifically appropriate for journalists

• Lack of resources in implementation

Affects especially implementation of positive obligations

e.g. effective police and judicial systems

impairs the functioning of relevant international bodies

• Reluctance to accept supra-national monitoring institutions

scarcity of international enforcement bodies with binding powers

ENFORCEMENT MECHANISMS: UNIVERSAL

A. Universal mechanisms for monitoring compliance

Security Council

binding powers only when a threat to the peace, a breach of the peace or an act of

aggression (Art. 39 UN Charter)

Human Rights Committee

quasi-judicial procedure - individual communications, but optional

non-binding (albeit authoritative) reports

Other UN treaty-based monitoring bodies

UNESCO International Programme for the Development of Communication

ENFORCEMENT MECHANISMS: REGIONAL

B. Regional (judicial) mechanisms for monitoring compliance

• more far-reaching enforcement mechanisms:

regional courts issuing binding judgments on individual complaints

o Council of Europe – European Convention on Human Rights

compulsory jurisdiction of the European Court to receive individual complaints

monitoring of execution by the Committee of Ministers

• can bring States before the Court for non-compliance (Protocol 14)

• suspension and expulsion of States for serious human-rights violations

o American and African human rights systems

comparable but less incisive, limits on the ability of the individual to bring a complaint

many States have not ratified the Protocols giving the relevant courts jurisdiction

o Other regional systems : weaker enforcement mechanisms

LIMITS OF ENFORCEMENT MECHANISMS

• Often purely consultative

• Or in any case non-binding

• Limited in the extent of cases

– Or plagued by an extensive back log

• Procedures often lengthy, expensive and poorly understood

by individuals in need

• Direct individual access rare

– And usually depending on exhaustion of local remedies

• Follow up mechanisms occasionally weak

• Not enough clarity detail in develop specific issues of interest

to journalists

THE LAW OF ARMED CONFLICT

AND INTERNATIONAL CRIMINAL LAW

International Humanitarian Law

Applies in times of armed conflict alongside human-rights provisions

Protection of civilians in times of war (distinction & proportionality)

- obligations of belligerent parties (including non-state armed groups):

1977 Protocol I to the 1949 Geneva Conventions:

express recognition of civilian status of journalists

- reiterated in Security Council Resolution 1738 (2006)

- International Criminal Law

- War Crimes, Crimes against Humanity, Genocide

- Systemic effects of attacks on journalists and the concept of ‘gravity’

- Judicial enforcement, but of very selective frequency, and specialisation

on the protection of journalists not clearly developed.

DELINEATING THE IDEAL INSTRUMENT

• Possible legal responses to the current situation of violations and impunity

New international HR instruments for the protection of journalists; and/or

New specific HR enforcement mechanisms

Enforcement through International Criminal Law

An instrument of universal scope

Potentially negotiated within General Assembly or UNESCO General Conference

Filling the various regional gaps of applicability

But at the same time functioning in a complementary way to local regimes

Of binding nature

For allowing for the space of development of specific non-binding initiatives

Of intrusive enforcement

Including judicial enforcement,

On individual complaints

Potentially without the exhaustion of local remedies

At the same time, respecting local and regional mechanisms who guarantee similar standards of protection

D E L I N E A T I N G T H E I D E A L I N S T R U M E N T :

W H A T ’ S T H E V A L U E O F A S P E C I A L I S E D I N S T R U M E N T ?

• Identifying the areas in need of special protection

– E.g. Combining rules on life, disappearances, arbitrary arrest,

criminalisation of defamation, deportation, as well humanitarian law

provisions

• Developing a cohesive and specialised jurisprudence on the interpretation

of general rights

– E.g. The public speech specific balance in freedom of expression

• ‘Sectoral’ conventions, of particular expressive value

• Ultimately contributing to identifying ‘what is special’ about the protected

category

– As well as ‘delineating’ the protected category

– But would this be necessary/desirable given the current developing

phenomena of citizen-journalists etc?