In the difficult and often futile attempts by the human rights community to hierarchize rights for academic reasons or for the purpose of prioritizing implementation, free speech rights have always been given the highest priority. The content of expressive rights has been classified as “first-generation,” signaling a larger sense of fundamental importance than other rights labeled second- or third-generation. Though the freedom of speech and expression inarguably fell into the “civil and political” side of the spectrum rather than the “economic, social, and cultural” side, the historical division between states that do and do not respect, protect, and fulfill the legal, moral, and political dimensions of speech rights tends to reveal a division between relatively open and closed societies.
As the post-WWII development of international human rights law was gaining momentum and legitimacy, nascent rights were grounded in a largely moral discourse. The foundational international human rights documents (the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights) enshrine human rights as “inalienable rights” that “derive from the inherent dignity of the human person.” National and international legal systems must act as safeguards “against tyranny and oppression” that can impinge on these rights. Though these lofty sentiments are employed in hortatory, preambular paragraphs, they have remained a forceful, guiding principle in the recognition of human rights worldwide.
As with many other intersecting points between rights, the exercise of some rights must consider the enjoyment of other rights. In relation to free speech, restrictions on expressions that incite violence or hatred are one method of diluting the strength of free speech that has been commonly accepted by many states. Irrespective of wherever one determines the boundaries of free speech protection, the fact remains that the corpora of post-WWII human rights legal development as well as the nearly two-hundred year-long road to the international stage has considered such basic rights to exist organically.
During a U.N. press conference held October 2, Deputy Secretary-General Jan Eliasson posited that the freedoms of speech and expression were “gift[s] given to us by the [Universal] Declaration of Human Rights.” In the year 2012, the second ranking leader of the U.N. has unabashedly characterized this core right of a democratic society completely as a creature of positive, man-made law.
Eliasson did not stop there. He went on to describe the “right” as a “privilege.” As a leading figure of the main international organization whose primary goal is to advance a humanitarian agenda largely based in the moral, political, and legal discourse of human rights, Eliasson’s choice of words is at best reckless.
The legal doctrine of legal entitlements is not jurisdictionally uniform on its treatment of rights and other related terms such as powers, immunities, and privileges. One-hundred years after Wesley Newcomb Hohfeld published his seminal article “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” in the Yale Law Journal, the landscape remains nebulous. In its most condensed form, the difference is generally understood to be that privileges are exercised and rights are enforced. In other words, when one has a legal privilege to do or not do something, the power of the state need not be implicated – that act or forbearance may be undertaken. To claim a legal entitlement in the form of a right, the state must vindicate it. This is typically done through a court system.
At this point, privileges appear to carry more force in the practical, everyday sense. Privileges can be revoked however, where rights cannot regardless of how qualified they may actually be. Though international human rights legal instruments describe all of their substantive contents as “rights,” only protections from which states cannot derogate are truly rights in legal terminology. Those rights that may be derogated from or restricted in some manner are more akin to privileges.
Article 19, section 2 of the International Covenant on Civil and Political Rights protects the freedom of expression, but section three leaves much room for states to limit those rights. Manifestations of defamatory expressions are not protected, nor are expressions that a state determines are contrary to the interests of national security, public order, public health, or morals. These are extremely broad categories that could swallow a large amount of expression should a state choose to, and international law on the subject would have little controlling or persuasive authority to change.
Lamenting the use of the word “privilege” rather than “right” may seem like a fruitless exercise in parsing out the semantics of legal phraseology, but in determining the relative strength of the various forms of legal protections from state power, word choice and phrasing is of paramount importance to the furtherance of human rights objectives at the international level. When considerations of morality plays such a large role in securing the acknowledgement and observance of human rights and their substantive content, and where these protections serve to protect the individual and the group from the a state’s misuse of power, describing them as gifts given by the grace of the international community of states is more dangerous than it appears. According to the founding reasoning, the international community merely codified protections to dignity and security that existed from time immemorial irrespective of historical observation. This formulation is central to maintaining the legitimacy and force of international human rights law, which is merely the vehicle for vindicating those rights that cannot be revoked. Using Eliasson’s logic, only legal entitlements rising to the level of jus cogens protections (a short list of protections composed of those for which there is consensus among the international community of states, such as the protection against genocide) would be rights, which could swing the pendulum towards unraveling core political, civil, and social rights.