Global Freedom of Expression

IBAHRI Enforcement Report: Protecting and promoting press freedom by strengthening consular support to journalists at risk

Key Details

  • Region
  • Themes
    Press Freedom

Executive Summary

The importance and imperative of press freedom – and the particular salience of consular assistance in securing it – is exposed and expressed in the context of the current pandemic. While the world witnesses the rapid spread of Covid-19, there is an equally virulent pandemic of assaults on media freedom, underpinned by a crisis of democratic recession and global resurgence of authoritarianism.

Consequently, journalists and media organisations have been increasingly targeted due to the crucial, though often under-appreciated, role they play in ensuring a free and informed society. To prevent the press from exposing human rights violations and promoting public scrutiny of government action, a growing number of States have engaged in both overt and covert efforts to censor, discredit and silence their work.[1]

Indeed, every day, journalists and media personnel around the world fall victim to arbitrary detention, violence or intimidation on account of their work.[2] These attacks resonate beyond their individual cases, being not only attacks on free expression, but also exponential assaults that silence the subjects of the reporting and deprive the public of their stories. By threatening and targeting journalists, States seek to send a dissuasive message, suppressing those who would report on their wrongdoings.

A free press is essential for exercising human rights and fundamental freedoms; it lies at the core of democratic values. In order for citizens to hold their governments to account, they need free and independent news sources to provide them with accurate information and informed analysis.[3] Accordingly, any attempt to threaten the independence or safety of journalists is fundamentally anti-democratic.[4]

The States that interfere with the vital work of international journalists do so, most predictably, because they fear this free flow of information. They know that if journalists cannot report on their abuses, such crimes can continue with impunity.

But while the global crackdown on media freedom may be more pronounced in authoritarian regimes, democracies are certainly not immune. According to the Committee to Protect Journalists (CPJ), between 29 May to 1 June 2020 at least 125 press freedom violations were reported throughout the United States by journalists and media workers covering the nationwide protests over the killing of George Floyd by Minneapolis police.[5] CNN journalists were arrested live on air while reporting on the protests in Minneapolis,[6] and Australian journalists were attacked by police during a live newscast while covering the demonstrations in Washington, DC.[7] As of 7 September 2020, the US Press Freedom Tracker counted a total of 746 press freedom incidents targeting journalists in the context of the George Floyd protests alone.[8]

The global decline in media freedom has been intensified by the coronavirus pandemic.[9] As the United Nations High Commissioner for Human Rights has reported, ‘some States have used the outbreak of the new coronavirus as a pretext to restrict information and stifle criticism’.[10]

State actors are lashing out at journalists who are critical of their government’s crisis response, or who have merely referenced the extent of the crisis in their countries.[11] Since the coronavirus outbreak, journalists across the globe ‘have been berated at news conferences, had their credentials revoked, the printing of their newspapers banned and their news outlets closed’.[12] Other journalists have gone missing[13] after publishing coverage critical of public health responses, and whistleblower healthcare professionals have been found dead after reporting on the dire conditions in their countries.[14]

The coronavirus pandemic has underscored the pivotal role that the press plays in preventing the spread of the virus by promoting transparency and accountability.[15] The capacity swiftly and adequately to respond to this public health crisis largely depends on the ability of journalists to communicate accurate and reliable information to the public.[16] Therefore, the personal safety of journalists and media workers is paramount. In these exceptional times, it is vital that journalists have unencumbered access to their networks, and that international audiences have unencumbered access to journalists. Although false information about Covid-19 can have dangerous – or even deadly – consequences, the use of oppressive laws to silence critical reporting under the guise of curtailing the spread of misinformation is also particularly dangerous to public health and undermines the democratic health of societies.[17]

Moreover, with Covid-19 infections rampant throughout prisons, journalists detained on account of their work are facing the additional risk of contracting the potentially fatal coronavirus while in custody.[18] Such journalists are often detained in prisons that are otherwise already plagued by overcrowding and unhygienic conditions. In many countries, authorities are unwilling or unable to implement adequate health and safety measures to contain the spread of the virus in detention centres.[19] The UN has thus urged governments to release ‘every person detained without sufficient legal basis, including political prisoners, and those detained for critical, dissenting views’.[20] While some journalists have been released, many remain behind bars. At least two journalists – Mohamed Monir in Egypt and David Romero Ellner in Honduras – have died as a result.[21]

The importance and imperative of consular assistance as a tool to protect journalist nationals at risk abroad: towards a legal paradigm of home State obligation

As journalists work and travel internationally in increasing numbers and to politically fraught locations, the importance of consular assistance for helping journalists facing risks and challenges abroad has become all the more salient.

Consular assistance refers to the help, advice and support that diplomatic agents of a country provide to citizens of that country who are travelling or living abroad. Journalists, especially those living in democracies, expect their governments to provide them with the minimum protections available in their countries of citizenship and under international law if they encounter troubles abroad while performing their duties. Access to consular assistance is especially important in situations where journalists are operating in countries that do not have the same legal and judicial standards as their countries of citizenship. In some instances, the only available remedy to journalist nationals at risk abroad may be consular assistance and diplomatic protection, particularly in places where there is no adequate legal system to protect people from arbitrary detention, torture and ill-treatment, incommunicado detention in unknown places (enforced disappearance) or prolonged detention by non-State authorities (abduction or trafficking where monetary or non-monetary ransoms are demanded).

When dealing with journalists reporting abroad, the behaviour of two States is directly at issue: the host State (where the journalist is reporting), and the home State (where the journalist is a national). Home States must accept their responsibility to protect and defend their reporters working abroad; home States cannot defer to host States when it comes to the treatment of international reporters. Going beyond the host and home States, it is also clear that protecting journalists across international borders is a responsibility shared by the international community. The work of journalists working abroad benefits everyone, and the deficit in international accountability will be felt by everyone if journalists continue to be systematically hampered in their reporting. According to an annual report on freedom and the media by Freedom House, ‘if democratic powers cease to support media independence at home and impose no consequences for its restriction abroad, the free press corps could be in danger of virtual extinction’.[22]

A legal approach to consular assistance for journalists at risk abroad

The traditional paradigm for consular support has allowed home States to abdicate their obligations under international law in the name of comity. Such abdication of responsibility by home States is misplaced, outdated and should have no role in 21st-Century international relations.

The traditional paradigm operates from the perspective of States: when a host State infringes the human rights of a foreign national, this infringement is seen as a violation of the rights of the home State.[23] The traditional paradigm can lead to two key fallacies: (1) that the only rights at issue belong to the home State and not the foreign national; and (2) that the home State has rights but not obligations when dealing with its national abroad. The traditional paradigm therefore risks removing agency from the individual and leaving the protection of his/her rights entirely dependent on the inclinations and biases of the home State.

The traditional paradigm can no longer justify excluding nationals from the category of rights-holders, if it ever truly did.[24] In all other areas, it is widely accepted that individuals possess human rights under international law. The same must be said for consular assistance. Applied to the cases of journalists working abroad, the central focus should always be placed on the individual whose rights are being compromised. Only by focusing on the rights of the journalist, and not the home State, can the issue of consular assistance move from the political to the juridical. The rights of a journalist working abroad should never be subject to the political whims, allegiances or alliances that exist between the home State and the host State.

The right to consular access is itself a human right worthy of protection. Allowing – and indeed facilitating – such access is an obligation on the part of both the host State and the home State. From the perspective of the host State, inhibiting consular assistance certainly breaches its obligations towards the home State, but it also breaches its obligations owed separately and independently to the foreign national.[25] Accordingly, the home State does not have the juridical authority to waive its national’s right to consular assistance or pardon the host State’s violation. Failure to respect an individual’s consular rights violates the due process of law in the host State and taints the purported judicial process that follows.[26]

From the perspective of the home State, the right to consular access implies that the home State must take concrete action in order to (a) ensure the active flow of information and communications from its national; and (b) protect its national from human rights violations on the part of the host State.[27] The home State’s obligations are not limited to situations where the host State is cooperative. Where the host State refuses to allow the home State to communicate with its national and defend his/her interests, the home State becomes a further perpetrator – deficient in fulfilling its own obligation towards its national – if it does not escalate the matter and advocate on behalf of its national.[28]

Many States have enshrined their obligations as being home States towards their nationals travelling abroad. Such obligations can be found in State constitutions, legislative acts, administrative policies and practices.[29] Flowing from such obligations, nationals have meaningful, enforceable rights against their home States where their rights to consular assistance are violated.

The legal perspective on consular assistance cannot therefore be limited to those obligations that are owed by host States to home States. An impoverished view of consular assistance, based on such a restrictive paradigm, leads to the false conclusion that nationals have no more rights to consular assistance than their home State is willing to give them. In fact, the right to consular assistance exists in international law independent of the home State’s willingness to enforce it.[30]

Journalists’ underlying rights when working abroad

An approach that starts from the premise that journalists working abroad have a right to consular access coheres with the fundamental nature of the underlying rights that they enjoy under international law. Consular assistance serves to safeguard these rights. Conversely, threats to international journalists frequently take the form of violations of these rights.

Four fundamental rights are worthy of particular consideration:

  • freedom of expression and freedom of the press;
  • the right to be free from arbitrary detention;
  • the right to be free from torture and inhuman treatment; and
  • the right to life, liberty and security of the person.

Freedom of expression and freedom of the press are the cornerstones of informed public participation and debate. Both are inherently beneficial to democratic society, and instrumental in disseminating information and promoting transparency.[31] Journalists are the key actors that allow the international press to function and to satisfy its important goals. Citizens also rely on journalists to keep the public informed, to ensure governments remain accountable for their actions, and to promote the search for and attainment of truth. Attacks on journalists – especially attacks targeted at journalists – are attacks on freedom of the press.

The right to be free from arbitrary detention is a right that is lamentably violated frequently for journalists working abroad. Detention based solely on an individual’s participation in public affairs is necessarily arbitrary, as is detention of an accused in an unknown location. The right to be free from arbitrary detention dovetails with an individual’s due process rights, which ensure inter alia prompt review by a judicial authority.[32]

The right to be free from torture and inhuman treatment, and the right to life, liberty and security of the person, are among the most basic human rights protected in international law. States must ensure that their officials do not engage in any form of torture or extrajudicial executions.[33]

These fundamental rights are the ones most often implicated in consular cases involving journalists working abroad. The mere prospect of their violation by the host State triggers consular obligations on the part of the home State. Accordingly, the responsibility of home States to protect these rights does not end at their borders.

What can be done to protect journalists working abroad?

While silence breeds impunity, transparency breeds accountability. If the international community is to favour accountability over impunity for human rights violators, and to favour transparency over the cover of silence, then it must do more to protect – and openly signal its support for – the journalists on the front lines and online. Now more than ever, we need a sincere global commitment to protect journalists so that they can carry out their important work without the threat of harassment, intimidation, false imprisonment, torture or death.

Consular assistance is one of the most important ways in which States can protect the international free press and the fundamental human rights held and enabled by journalists reporting abroad. In some cases, consular assistance may be the only way to protect journalists against human rights violations, particularly when working in countries with poor human rights records.

This report recommends a series of measures both internationally and domestically that will add clarity and accountability to the current paradigm of consular support. Inconsistency and its close relative, arbitrariness, should have no place in an international system that respects a free press and intends meaningfully to protect its purveyors.

Towards a charter of rights for detained journalists: a new rightsbased paradigm[34]

A Charter of Rights for Detained Journalists should be established to solidify the law and provide for clear obligations for both host and home States. This Charter would recognise:

  1. Journalists have a right to be free from arbitrary detention and benefit from the same rights and protections as other individuals in detention.
  2. Journalists subject to detention benefit from the same rights and protections as other individuals in detention.
  3. Upon detention of a journalist foreign national or dual national, the host State must immediately contact the consulate of the journalist’s home State. The detention of a journalist immediately triggers responsibilities on the part of the journalist’s home State and the host State must put the home State in a position to fulfil these responsibilities.
  4. Journalists subject to detention in a foreign State have a right to meaningful consular assistance. This includes the right to have confidential contact with the consulate of the home State, the right to have a representative of the home State present during legal proceedings, and the right to have one’s conditions of detention monitored regularly. Because meaningful consular assistance depends on the cooperation of both the host State and the home State, this right involves obligations on both their parts.
  5. The journalist’s home State has an obligation to employ its best possible efforts in ensuring that the detention meets international standards. This obligation is not and cannot be outsourced to the host State. If the home State has a reasonable basis to believe that international standards are not being met, it has an obligation to escalate the matter and advocate on behalf of its national.
  6. The home State must also advocate on behalf of a journalist detained abroad to ensure his/her treatment is consistent with the rights protected by the domestic law of the home State. Domestic legal obligations still apply to consular officials operating on foreign territory. They should advocate on behalf of their national for treatment abroad that would match his/her rights at home.
  7. Where there is a substantial concern that the journalist’s rights will not be protected by the host State, the home State has an obligation to advocate in favour of the journalist’s return home.
  8. In turn, the host State must repatriate a journalist where it cannot guarantee that his/her rights will be respected. This obligation is proactive on the part of the host State, and although it should follow from a request from the journalist if one can reasonably be communicated, it does not depend on a formal request by the home State.
  9. The home State has an obligation to communicate with the journalist’s designated contacts – including, where applicable, the journalist’s publisher – in order to ensure they are kept abreast of material developments. The obligation is ongoing in nature.
  10. The journalist has the right to communicate with his/her home State’s consular officials confidentially. Communications should occur in person. Where the journalist is not allowed confidential communications, the home State should take this as a strong indicator of abuse.
  11. Journalists subject to detention have a right to publicise their detention.
  12. A journalist’s reporting materials must be preserved upon detention, with an inventory thereof being provided to the journalist and the consular officials of the home State. Detention cannot be used as a strategy to silence a journalist and seize material relating to their work and sources.
  13. If requested by the home State, the host State must provide it with a copy of the detained journalist’s reporting materials or justify its refusal under national laws. Upon release, the journalist should regain possession of his/her materials.

Protecting journalistsrights abroad: enshrining a code of conduct for the provision of consular assistance by the home State[35]

This report elaborates minimum standards that represent the bare obligations that home States owe their journalist nationals abroad – obligations that should not be subject to compromise based on political vicissitudes. Indeed, from the home State’s perspective, the protection of journalists’ rights abroad are often calculated as part of a cost-benefit analysis in which the counterbalancing factor is the home State’s diplomatic relationship with the detaining State. This is a false equation that encourages inaction on the part of the home State, thereby systematically undervaluing the human rights of the journalists at issue.

There are five areas upon which home States can focus to ensure that they meet their obligations to provide meaningful consular support:

  1. Consular preparation. The consular officials of the home State must study the general landscape in the host State and be ready to provide legal and practical support if and when called upon by a journalist encountering difficulties abroad.
  2. Consular training. The consular officials of the home State must engage in specialised learning that focuses on the issues likely to be confronted by journalists, including but not limited to training to detect signs of torture or mistreatment.
  3. Consular investigation. The home State must establish whether the host State officially recognises the detention of the journalist. If so, it must ascertain the legal and factual basis for the detention and the procedural framework that applies thereto. If, on the other hand, the home State suspects a detention is occurring that the host State is not acknowledging, the home State must investigate the matter further. So long as it is not reasonable to believe the response provided by the host State, the home State must continue its investigation into the matter.
  4. Provision of consular support. This obligation involves:
    1. monitoring the conditions of detention and the journalist’s legal proceedings. Monitoring must be active, timely and consistent;
    2. communicating with and visiting the journalist detained abroad. Contact should be confidential and in person. So long as there are no confidential communications with the journalist, the home State must proceed on the premise that the conditions of the journalist’s detention are significantly worse than they may appear;
    3. legal representation of, and medical assistance for, the journalist;
    4. attendance at legal proceedings;
    5. providing notice and reports to designated contacts, and being responsive to their concerns, requests and questions. A journalist’s designated contacts will often include his/her publisher;
    6. escalating the situation where the circumstances so require. For instance, where there exist reasonable grounds to believe the detained journalist may or has been subjected to torture or inhuman treatment, the matter must be escalated to the highest offices of the home State (i.e., the head of government);
    7. engaging in advocacy on behalf of the detained national. Journalists working abroad are often detained where the foreign State seeks to avoid transparency and accountability. The active advocacy of the home State can help ensure the cost-benefit analysis of detention is reversed;
    8. making a repatriation request where the circumstances so require. In particular, this obligation is triggered where there are reasonable grounds to believe that the journalist was or will be subject to arbitrary detention, torture or inhuman treatment; and
    9. reporting cases to relevant international bodies.
  5. Ensuring accountability. Home States must enact independent mechanisms of oversight to review the performance of consular officials, including the appointment of independent monitors, performance reviews and public reporting.

In addition to the foregoing minimum standards:

  1. Home States should put pressure on foreign States detaining their journalist nationals through the calculated use of sanctions:
    1. at the State level, this means enacting and implementing legislation similar to the Magnitsky Acts found in the US and Canada, which allow for individual foreign abusers to be sanctioned sanctioned in line with international human rights law;[36] and
    2. at the individual level, this means clearing legal hurdles (such as State immunity acts) that prevent those individuals directly harmed by serious human rights abuses of foreign States from obtaining redress in national courts.[37]
  2. States should maintain and publicise lists of the news agencies around the world whose content is determined or dictated by States that suppress free reporting. The goal of these State-run news agencies is often to drown out the voices of a free press through propaganda.
  3. States should implement policies to support those journalists who foreign governments try to silence. This can involve the direct provision of financial resources, protective equipment and support to journalists working abroad; grants to add further investigatory resources to stories on which detained journalists have worked; and support to lawyers and non-governmental organisations working in common cause with journalists abroad.

Global accountability through an international commissioner

An international commissioner specifically tasked with monitoring respect of the above rights should be appointed. Such an independent commissioner would bring neutrality to the otherwise politicised process of calling both home and host States to account. The commissioner should be endowed with investigative powers and would provide an additional line of communication with detained journalists.

The establishment of an independent commissioner would complement and work in concert with existing international remedies, including the relevant UN Special Procedures, such as the special rapporteurs and the UNWGAD.

Journalists working abroad have rights. This report calls for a structure – both domestic and international – that will announce States’ obligations with consistency and coherence, and allow journalists working abroad meaningfully to assert their rights when on assignment away from home. The international protection of freedom of the press demands no less.

Read the full report below or download it here.



[1] A G Sulzberger, ‘The Growing Threat to Journalism Around the World’ (The New York Times, 23 September 2019).

[2] See Amal Clooney, ‘The Use of Targeted Sanctions to Protect Journalists’ (IBA 2020) p 5; CPJ, Data of Journalists and Media Workers Killed between 2018 and 2020 (as of 17 January 2020)

[3] See ‘Statement by the Media Freedom Coalition on its first meeting’ (Government of Canada, 26 February 2020)

[4] IBAHRI, Freedom of Expression Bulletin Issue 3 (IBA, 5 May 2020) p 12 aspx?DocumentUid=0afd40bc-ab84-4cd6-9c7b-354387ec57f6.

[5] CPJ, ‘At least 125 press freedom violations reported over 3 days of U.S. protests’ (CPJ, 1 June 2020)

[6] Jason Hanna and Amir Vera, ‘CNN crew released from police custody after they were arrested live on air in Minneapolis’ (CNN, 30 May 2020)

[7] Angus Watson, ‘Australia will investigate attack on journalists by police in Washington’ (CNN, 2 June 2020)

[8] US Press Freedom Tracker, ‘Press Freedom in Crisis’ (last updated 21 October 2020)

[9] IBAHRI, Freedom of Expression Bulletin Issue 3 (IBA, 5 May 2020) p 18

[10] UN News, ‘“No time to blame the messenger” warns UN rights chief, amidst media clampdowns surrounding COVID-19’ (UN, 24 April 2020)

[11] Numerous journalists have reported being harassed, attacked or arrested for reporting on Covid-19. E.g., Mahmoud al-Jaziri in Bahrain (; Sovann Rithy in Cambodia (; Elena Milashina in Chechnya (; Andrew Sam Raja Pandian in India (; Masoud Heydari and Hamid Haghjoo in Iran (; Peter Okutu and Chijioke Agwu in Nigeria (; Fayia Amara Fayia in Sierra Leone(; and George Steinmetz in the US (

[12] IBAHRI, Freedom of Expression Bulletin Issue 3 (IBA, 5 May 2020) p 2

[13] Nectar Gan and Natalie Thomas, ‘Chen Quishi spoke out about the Wuhan virus. Now his family and friends fear he’s been silenced’ (CNN, 10 February 2020); and Lily Kuo, ‘“They’re chasing me”: the journalist who wouldn’t stay quiet on Covid-19’ (The Observer, 1 March 2020)

[14] Isabelle Khurshudyan, ‘Three Russian doctors have fallen from hospital windows in two weeks, amid reports of dire conditions’ (Washington Post, 6 May 2020)

[15] Moez Chakchouk, ‘UNESCO stresses importance of safety of journalists amid COVID-19 pandemic’ (UNESCO, 27 March 2020)

[16] IBAHRI, Freedom of Expression Bulletin Issue 2 (IBA, 21 April 2020) p 1

[17] IBAHRI, Freedom of Expression Bulletin Issue 3 (IBA, 5 May 2020) p 18

[18] Joel Simon, ‘UN’s Guterres must renew call to free jailed journalists amid pandemic’ (CPJ, 11 September 2020)

[19] Joel Simon, ‘UN’s Guterres must renew call to free jailed journalists amid pandemic’ (CPJ, 11 September 2020)

[20] UN News, ‘Political prisoners should be among first released in pandemic response, says UN rights chief’ (UN, 3 April 2020)

[21] Joel Simon, ‘UN’s Guterres must renew call to free jailed journalists amid pandemic’ (CPJ, 11 September 2020)

[22] Sarah Repucci, ‘Freedom and the Media 2019: A Downward Spiral’ (Freedom House, June 2019), p 2.

[23] See Mavrommatis Palestine Concessions Case (Jurisdiction), [1924] PCIJ (ser A) No 2, 112, in John Dugard, ‘Diplomatic Protection and Human Rights: The Draft Articles of the International Law Commission’ (2005) AUYrBkIntLaw 6; (2005) 24 Australian Year Book of International Law 75. The Vienna Convention on Consular Relations (1963) largely, though not exclusively, follows this paradigm as well. The traditional approach to consular relations is discussed below in the sections ‘Consular support as a State right’ and ‘Traditional approach to consular support as a State obligation’.

[24] See below: ‘Contemporary developments in consular support as a State obligation’.

[25] See, e.g., LaGrand Case (Germany v United States of America), Judgment, ICJ Reports 2001, p 466, para 89; and IACtHR, ‘The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99’, 1 October 1999, paras 84 and 137.

[26] IACtHR, ‘The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99’, 1 October 1999, para 137.

[27] Refer below to ‘Consular support as a home State obligation’.

[28] With respect to jus cogens norms, see, e.g., Report of UN Working Group on Arbitrary Detention (‘UNWGAD Report’), A/HRC/39/45, 2 July 2018, paras 50–58.

[29] With respect to constitutional protections, see: Constitution of Bulgaria, Art 25(5); Constitution of China, Art 50; Constitution of Estonia, Art 13; Constitution of Guyana, Art 31; Constitution of Hungary, Art 69 (3); Constitution of Latvia, Art 98; Constitution of Lithuania, Art 13; Constitution of the Republic of Korea, Art 2(2); Constitution of Poland, Art 36; Constitution of Portugal, Art 14; and Constitution of Romania, Art 17. Further elaboration on the situation in other States is outlined below.

[30] This is expanded upon further in the report in Section III, p 49.

[31] See below, ‘Freedom of the Press’.

[32] See below, ‘Arbitrary Detention’.

[33] See below, ‘Torture and Inhuman Treatment’.

[34] Refer to The particular situation of dual national in this report.

[35] Refer to Freedom of expression and freedom of the press in this report.

[36] Amal Clooney, ‘The Use of Targeted Sanctions to Protect Journalists’ (IBA 2020)

[37] See, e.g., Bill C-632, ‘An Act to amend the State Immunity Act (genocide, crimes against humanity, war crimes or torture)’ Second Session, Forty-first Parliament, 62–63 Elizabeth II, 2013–2014