“Blind Man’s Bluff: Kazakhstan’s Mirage of Compliance with International Obligations to Uphold the Freedom of Expression and Freedom of Assembly and Association” by Kapok Tree Diplomacy
© Kapok Tree Diplomacy. May 2011. All rights reserved. Jeff Dwiggins.
Section One – The Right to Freedom of Expression
ICCPR Principles and Obligations. The Universal Declaration of Human Rights (UDHR), though not legally binding, declares that “Everyone has the right to freedom of opinion and expression … and to seek, receive and impart information and ideas through any media and regardless of frontiers” (Art. 19).The ICCPR, which Kazakhstan ratified in 2006 (UN Treaty Collection), expands upon this definition and binds state parties “in accordance with its terms and with international law” (Steiner, Alston and Goodman (SAG) 152). Treaty obligations are to be governed by the Vienna Convention’s Article 26 fundamental principle of pacta sunt servanda which states, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” (Dunoff, Ratner & Wippman (DRW) 58). Article 19 of the ICCPR 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 … or through any other media
(3) The exercise of the rights … 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, and (b) for the protection of national security or of public order, or of public health or morals. (1966)
ICCPR General Comment No. 34. The ICCPR Committee recently issued General Comment (GC) No. 34, which elaborated further on the meaning of freedom of expression and is intended to provide additional specificity and clarification to states on their obligations associated with this right. GC No. 34 explains, “Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability” (para. 2), and adds that it cannot be “derogated from during times of emergency” (para. 4), nor silenced by “arbitrary arrest, torture, [and] threats to life and killing” (para. 22).
The Committee asserts, “A free, uncensored and unhindered press or other media is essential in any society” (para. 12), and states must guarantee media “independence and editorial freedom” (para. 15). The Committee affirms that the general public must have access to “information held by public bodies” (para. 17), and restrictions to expression imposed on grounds of national security or public order cannot “put in jeopardy the right itself”(para. 20). Monopoly control of the media by the state is highly discouraged (para. 41).
Finally, the Committee says “the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties” (GC 34 para. 40), and makes it clear that states cannot ban or shut down media providers, “impose onerous licensing conditions and fees” on them, or allow “excessive punitive measures and penalties” be imposed on them in libel or defamation lawsuits on the basis of the media provider being “critical of the government” (GC 34 paras. 41, 44, 45 & 49).
Entire essay is 7,209 words, 26 pages double-spaced, 42 references
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Table of Contents
I. The Right to Freedom of Expression
A. ICCPR Principles and Obligations
B. ICCPR General Comment No. 34
C. OSCE Principles and Obligations
II. The Right to Freedom of Assembly and Association
B. ICCPR Principles and Obligations
C. OSCE Principles and Obligations
III. Freedom of Expression – Gaps between Practice & Commitments
A. Kazakhstan’s National Legal Framework for Upholding Freedom of Expression
B. International Assessment of Kazakhstan’s Record on FOE – the 2010 UPR
C. Other International Assessment of Kazakhstan’s Record on FOE – NGOs and Think Tanks
D. Other High Profile Cases
IV. FOE – Recommendations to Achieve Greater Compliance
V. Freedom of Assembly and Association (FOAA)-Gaps between Practice & Commitments
A. Kazakhstan’s National Legal Framework for Upholding FOAA
B. International Assessment of Kazakhstan’s Record on FOAA – the 2010 UPR
C. Other International NGOs and Think Tanks’ Assessment on FOAA
D. Forming Political (Parties) Associations
E . Restrictions on FOAA for Religious Groups
VI. FOAA – Recommendations to Achieve Greater Compliance