JUSTICE FOR FREEDOM OF EXPRESSION in 2014

Columbia University, 10-11 March 2015

Introduction

A year ago, when we met for the first Columbia University Jurisprudence Conference, there was strong evidence that political instability worldwide was on the rise after nearly 20 years of decline in political violence worldwide.  12 months later, it is not just that the global situation has deteriorated.  The nature, scale and extent of the challenges have dramatically transformed. What constituted localized, small or larger, armed violence and escalating political violence in 2014 have now morphed into full-blown warfare, most often regional or international in nature and involving many parties.  It is thus not surprising that the latest Global Peace and Terrorism Indexes should show a notable deterioration in levels of peace, and a 61% increase in the number of people killed in terrorist attacks over the last year.

Global analyses of freedom of expression in 2014, available at the time of writing this article, also highlight the worldwide deterioration in indicators and indexes. According to Reporters Without Border 2014 world press freedom index, “Beset by wars, the growing threat from non-state operatives, violence during demonstrations and the economic crisis, media freedom is in retreat on all five continents.  The indicators compiled by Reporters Without Borders are incontestable. There was a drastic decline in freedom of information in 2014. Two-thirds of the 180 countries surveyed for the 2015 World Press Freedom Index performed less well than in the previous year.” The Committee to Protect Journalists, focusing on imprisoned journalists highlight similar depressing trends: By the end of 2014, it had identified 221 journalists imprisoned around the world in 2014, an increase of 10 from 2013: “The tally marks the second-highest number of journalists in jail since CPJ began taking an annual census of imprisoned journalists in 1990, and highlights a resurgence of authoritarian governments in countries such as China, Ethiopia, Burma, and Egypt.”

The world situation compelled Kenneth Roth, the head of Human Rights Watch to write in the introduction to the organization’s 2015 World Report, “The world has not seen this much tumult for a generation.^[1]”

This is tumult or restiveness that eludes both categorization and geography. The killings of journalists are no longer country specific or territorially contained. The deliberate attack on and executions of Charlie Hebdo journalists in Paris in January 2015 demonstrates a globalization of the threats confronted by journalists. Whereas in a recent past identifying the greatest danger zones for journalists was fairly straightforward, the situation’s evolution  over the last one or two years deeply challenges these assumptions.  And thus, democracies in the making or well established, such as Mexico, the Philippines, France in 2015, compete with war ravaged locations such as Syria or Somalia for the tragic record of the deadliest places for the information providers.

The tumult occurs against a background of bi-polarity or multi-polarity in the making, with a range of countries (old and emerging powers) and of non-state actors (“terrorist” groups and religious actors with universalist ambitions) competing for global influence or supremacy.  The competition is played out not only at political, economic or military levels, but also, and increasingly so, at the ideological or normative and “soft power” level.

And there too, the data indicate that we are confronting a multiplication in the number of fronts, which reflect, and at times add to, the tumult.  Nowhere is this more striking than in the field of on-line freedom of expression and information, which is characterized by a multiplicity of normative battlegrounds^[2] and would-be norms entrepreneurs^[3]. There are conflicts on each of these fronts and conflicts between them.  Together this is creating a normative cacophony of a kind that – in all likelihood – has never before been encountered,  and not just over one generation^[4].

On the other hand, there is a risk that this political world tumult tempts us into overstating (emerging or long-lasting) conflicts about norms and values and thereby underestimating the level of consensus that may already have been generated, including over consensus new questions such as on-line freedom.

A more optimistic vision of the state of the legal and normative world emerges from the work of Professor Kathryn Sikkink – one of the leaders in this field.  In her 2011 book “The Justice Cascade”^[5], Sikkink investigates the development of one particular norm, that of individual criminal responsibility for human rights violations. She argues and demonstrates that a combination of factors, in the first place human rights prosecutions driven by human rights activists and lawyers, have acted to legitimize the norm of individual criminal accountability, compelling states and Heads of States to accept it, as shown by the ratification of the International Criminal Court.  In a later piece for the website Open Democracy, she and her co-authors argue that, “What is emerging is not a new independent and supranational system of courts. Rather, we see a decentralized but interactive global system of accountability, in which international tribunals and international criminal law interact with domestic institutions and national and transnational civil society groups to help deter future crimes^[6].”  This conclusion presumes that, even in the absence of working supra-national judicial institutions, there are common legal norms that have founded an interactive globalized judicial “system” and indeed allow it to operate.

Global norms^[7] are at the heart of the Global Freedom of Expression initiative at Columbia.  Its purpose is to better understand how global norms on freedom of expression and information (FoE/I) come about in an era defined and dominated by information. Established early in 2014, the initiative seeks, amongst other things, to understand the role played by tribunals (from domestic to international) in addressing FoE/I challenges and protecting (or not) freedom of expression. This involves monitoring, analyzing and cataloguing court cases from around the world, to determine whether legal precedents are emerging and morphing into global norms.

Could Sikkink’s conclusion apply to freedom of expression?  Are we witnessing too the emergence of inter-meshed legal global system for freedom of expression and information, guided by common norms?  One year into Global FoE@Columbia existence, it is too early still to conclude one way or the other as far as a global system goes. But this first monitoring of the global jurisprudence on freedom of expression points, overall, to worrisome trends and findings. With the exception of the continuing positive trend regarding the decriminalization of defamation (a trend, not a global norm), and a number of exemplary rulings by Courts in Africa and a few other jurisdictions, the vast majority of the 2014 jurisprudential trends paints a rather bleak picture of the judicial protection of freedom of expression.

[1] http://www.hrw.org/world-report/2015/essays/tyranny-false-comfort

[2] Multi-lateral or international ones, such as the United Nations (HRC, GA, ITU, UNESCO), Internet Governance Forum, and NetMundial but also regional (within the European Union) or bi-lateral.

[3] A number of governments (the United States Open Internet, China Internet sovereignty) but also the private sector, civil society, IT engineers, etc.

[4] Development of norms greatly affecting freedom of expression and information on-line is no longer the preserve of the Human Rights Council or the General Assembly of the United Nations; neither is it solely produced through the inventive multi-stakeholder processes of NetMundial focusing on Internet governance.  Trade negotiations and agreements (e.g TPP or TTIP or TISA), have become another crucial normative space where far-reaching decisions are made that could potentially profoundly define on-line freedom of expression.

[5] Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics, W. W. Norton, 2012

[6] “The ICC’s deterrent impact – what the evidence shows”, in Open Democracy, 3 February 2015

[7] Finnemore and Sikkink define norms as a “standard of appropriate behavior for actors with a given identity”, and distinguish this definition and approach from that of institutions, which suggest a “collection of practices and rules”. They argue that norms go through a life cycle composed of three phases: norm emergence, norm cascade and norm internalization, the first of which relies heavily on a norm entrepreneur. Finnemore and Sikkink warn that completion of the life cycle is not an inevitable process and that a number of norms may never get to the “tipping point” allowing for norms cascade and norms internalization.  Martha Finnemore and Kathryn Sikkink , International Norms Dynamics and Political Change in International Organization, Vol.52, No.4, 1998: pp.887-917.  See also Kathryn Sikkink, Transnational Politics, International Relations Theory, and Human Rights, in Political Science and Politics, Vol. 31, No. 3, (Sep., 1998), pp. 516-523

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