The Right to Freedom of Expression and Religion
This chapter includes two rights: a) the freedom of opinion and expression and b) the freedom of conscience and religion. Although these are two distinctive rights, they are in the same group as they both entail essential conditions for individual personal development. These rights are juxtaposed because freedom of expression is a quintessential aspect of the freedom to hold, practice and share one’s religious beliefs. It is important to note, however, that the freedom of expression is subject to more restrictions than the freedom of religion.
A. The right to freedom of opinion and expression
The freedom of expression is a right without which other rights are difficult to acquire and defend. The right to freedom of expression is rooted in the 17th century struggle of European legislators for freedom of speech. The world has seen a continuing struggle for the freedom of expression, including the freedom of speech and freedom of the press, often going hand in hand with the endeavour to limit the power of governments. The freedom of expression can be considered an essential aspect of the individual’s defence against government, just as the suppression of the freedom of expression is essential to tyranny. Human rights defenders also rely heavily on this right to challenge government indifference to or infliction of human rights abuses. As freedom of expression is a foundation for religious and political activities, it is often exercised in concert with the right to freedom of thought and assembly. Under present international Conventions, state obligations in relation to freedom of expression are absolute and immediate. At the same time, as with other forms of liberty, completely unrestricted freedom of expression may lead to the infringement on the rights of others. The freedom of expression has been hedged in by a number of limitations and restrictions, often more extensively than other rights. Historically, most limitations have dealt with the expression of sentiments contrary to prevailing institutions or religious, political or other beliefs. In addition, in times of war, governments often restrict the freedom of expression in the interest of national security. Like in the US Supreme Court decided in the Schenk vs. United States- case. As a cornerstone of democracy, the complexity and importance of freedom of expression has lead to extensive case-law before national courts and international supervisory mechanisms. Standards
International human rights law recognises a spectrum of expression, ranging from those forms that must be protected to those that must be punished. Article 19 of both the UDHR and the ICCPR establish the freedom of opinion and expression. Article 19 UDHR stipulates: ‘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.’ The regional Conventions also contain provisions regarding the freedom of expression: Article 10 ECHR, Article 13 ACHR and Article 9 ACHPR. The freedom of expression and opinion is a complex right that includes the freedom to seek, receive and impart information and ideas of all kinds through any media. The exercise of this right ‘carries with it special duties and responsibilities’ (see Article 19 ICCPR and Article 10 ECHR). Therefore, in general, certain restrictions or limitations on the freedom of expression are permitted under human rights law. Thus, Article 20(2) of the ICCPR requires states parties to prohibit ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.’ CERD also requires states parties to prohibit certain hostile expressions. Article 19 ICCPR stipulates that these limitations ‘shall only be such as are provided by law...
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