A/HRC/31/18
related and proportionate to the specific need on which they are predicated. Restrictions
may not be imposed for discriminatory purposes or applied in a discriminatory manner”
(para. 8). In its general comment No. 34, the Committee is even more specific in defining
the criteria for legitimate restrictions to freedom of expression. With regard to the required
legal basis, the Committee states that a law “must be formulated with sufficient precision to
enable an individual to regulate his or her conduct accordingly and it must be made
accessible to the public” (para. 25).
27.
With regard to the necessity clause, the Human Rights Committee stresses in general
comment No. 34 that, before resorting to restrictions, States “must demonstrate in specific
and individualized fashion the precise nature of the threat, and the necessity and
proportionality of the specific action taken, in particular by establishing a direct and
immediate connection between the expression and the threat” (para. 35).
28.
Concerning the concept of morals as one of the grounds for limitation, the Human
Rights Committee calls for a cautious approach. In its general comment No. 22, it notes that
“the concept of morals derives from many social, philosophical and religious traditions;
consequently, limitations on the freedom to manifest a religion or belief for the purpose of
protecting morals must be based on principles not deriving exclusively from a single
tradition” (para. 8). In reiterating this clarification in its general comment No. 34, it adds
that “any such limitations must be understood in the light of universality of human rights
and the principle of non-discrimination” (para. 32). This is in line with the Siracusa
Principles on the Limitation and Derogation Provisions in the International Covenant on
Civil and Political Rights, which require States to demonstrate that a limitation on grounds
of public morals is essential to the maintenance of respect for the fundamental values of the
community, “since public morality varies over time and from one culture to another”.10
29.
Unfortunately, limitation criteria are often loosely invoked by Governments, for
example by simply citing the truism that “no freedom can be absolute” in order to “justify”
far-reaching restrictions disregarding the criteria on the matter set out in articles 18 and 19
of the Covenant or specified in general comments and the Siracusa Principles. Against this
background, the clarifications made by the Human Rights Committee are all the more
important. It may be useful in this context to reiterate that human rights have the elevated
status of “inalienable rights” since they originate from the due respect for each and every
human being’s inherent dignity. Limitation clauses have an indispensable practical function
in upholding this status of “inalienable rights”, including in complicated situations, in
which public order interests may enter the picture. These clauses must therefore be applied
strictly and with the utmost degree of empirical and normative diligence.
B.
Need for communicative freedom in implementing Human Rights
Council resolution 16/18
1.
Reaffirmed significance of freedom of religion or belief and freedom of expression
30.
As mentioned earlier, the close interrelatedness of freedom of religion or belief and
freedom of opinion and expression is not confined to mere parallelisms in normative
formulations within the Covenant; the interrelatedness is also a practical one, as the two
rights mutually reinforce each other in facilitating free and democratic societies. This
insight should guide the implementation of Human Rights Council resolution 16/18. Many
observers have appreciated resolution 16/18 as a landmark document upon which to base
10
See E/CN.4/1985/4, annex, para. 27.
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