Fundamental and protected
Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?
| Right | Breakout | Contents |
|---|---|---|
| Freedom of Association | Freedom of Association refers to the right to associate and interact with organizations and individuals in terms of organizing and demanding common interests. The Office of the United Nations High Commissioner for Human Rights defines this right as, “The right to freedom of association involves the right of individuals to interact and organize among themselves to collectively express, promote, pursue and defend common interests. This includes the right to form trade unions.”(OHCR). This right is stated under the 20th article of the United Nations Declaration of Human Rights, which states, “(1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association.”(United Nations 1948). This right is generally associated with labor unions and is stated as the right of ‘Freedom of Association and Collective Bargaining’ according to the International Labour Organization which is a United Nations body that advances economic justice and rights such as the freedom of association.
This right is generally interpreted and defined differently under different constitutions pertaining to the various importance of the right to the environment and culture of the country. For example the United States’ constitution does not explicitly state the right to freedom of association rather in the first amendment it states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”(US Constitution Annotated 2022). Therefore the United States supports a form of association and does not allow the prohibition of ‘assembly’ of individuals ‘peaceably’. This right is often associated and phrased in constitutions as the ‘Freedom of Association and Collective Bargaining’ this implies a distinction between the two concepts; with collective bargaining being associated with the demands rather than the organization of the individuals. Liberal democratic countries often support this right based on common understandings from the English philosopher John Locke who in his writing of "Two Treatises of Government". Locke championed three fundamental unalienable rights which are: the right to life, liberty, and property. As such he does not explicitly state the right of freedom of association, yet he does describe the right of individuals to join together in pursuit of their interests. Locke argues, “The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule.”(Locke 1689) individuals have the natural right to associate with others based on mutual consent, forming communities and engaging in collective endeavors. He believed that individuals should have the liberty to create associations, including religious congregations, trade unions, and political organizations, in order to protect and advance their shared interests. Furthermore, John Locke introduced the concept of the ‘Social Contract’ exploring the idea of a collective agreement that establishes the norms, behaviors, and rules necessary for the formation of a society and a functioning government. John Locke, in his influential work "Two Treatises of Government," argued that individuals willingly enter into a social contract to form a civil society. This organized entity consent to be governed by an authority that protects their natural and unalienable rights of life, liberty, and property. Locke argues that if the government violates this social contract by infringing upon these fundamental rights, they have the right to resist and potentially overthrow the government. The idea of the social contract highlights the notion of individuals entering into a collective agreement to form a society and a government that serves their common interests and protects their rights. The concepts put forth by Locke contribute to the understanding of the relationship between individuals and the government, as well as the rights and responsibilities that arise from this social contract in terms of freedom of association. Furthermore, this right according to international organizations, specifically the International Trade Union Confederation, which has utilized an index to rank and identify the extent of the adoption of this right around the world(The International Trade Union Confederation 2022). According to the index, all countries generally have a clause or article that pertains to a form of right of freedom of association but many countries obstruct this right through justifications of ‘Free Speech’ of businessmen against their employees, ‘National Interests’, among other reasons for infractions on this right. Whereas, the exceptions of the right generally exist in different frequencies, it is generally unjustified according to the ILO and ITUC to obstruct this freedom, whereas according to the OHCR in their comparative study Authoritarian regimes tend to obstruct this freedom for their political and national interests and while they may allow association to exist it would ultimately be ineffective. For example, the ILO details in its ‘Arab States Workers' Organizations’ page figures which detail the limitations of the application of the right of freedom of association in which a multiplicity of Arab countries do not allow for migrant workers to join trade unions. This is seen as the ILO states, “With the exception of Bahrain and Oman, across the Arab States migrant workers are excluded from trade union representation by law.” This shows a general common exception based on the environment of freedom of association in the case of the Arab states, many of which have a significant labor pool of expatriate workers. To conclude, while most states are part of the International Labour Organization (ILO) and almost all countries recognize the constitutional right to association, the limitations and exceptions to this right vary significantly based on the specific environment and cultural context.
ILO. n.d. “8.Freedom of Association and Collective Bargaining (Decent Work for Sustainable Development (DW4SD) Resource Platform).” Www.ilo.org. https://www.ilo.org/global/topics/dw4sd/themes/freedom-of-association/lang--en/index.htm. ———. n.d. “Workers’ Organizations (Arab States).” Www.ilo.org. https://www.ilo.org/beirut/areasofwork/workers/lang--en/index.htm. Locke, John. 1689. Two Treatises of Government. S.L.: Blurb. McCombs School of Business. 2022. “Social Contract Theory.” Ethics Unwrapped. 2022. https://ethicsunwrapped.utexas.edu/glossary/social-contract-theory#:~:text=Social%20contract%20theory%20says%20that. “OHCHR Freedom of Assembly and of Association.” n.d. OHCHR. https://www.ohchr.org/en/topic/freedom-assembly-and-association#:~:text=The%20right%20to%20freedom%20of. Rousseau, Jean-Jacques. 1964. The First and Second Discourses. Bedford Books. ———. 1987. On the Social Contract. Indianapolis: Hackett Publishing Company, Inc. (Orig. pub. 1762.). The Editors of Encyclopedia Britannica. 2016. “Social Contract.” In Encyclopædia Britannica. https://www.britannica.com/topic/social-contract. The International Trade Union Confederation. 2022. “2022 ITUC Global Rights Index.” The International Trade Union Confederation. Sharan Burrow, General Secretary. https://files.mutualcdn.com/ituc/files/2022-ITUC-Rights-Index-Exec-Summ-EN_2022-08-10-062736.pdf. United Nations. 1948. “Universal Declaration of Human Rights - English.” OHCHR. United Nations. December 10, 1948. https://www.ohchr.org/en/human-rights/universal-declaration/translations/english. | |
| Freedom of Expression | Even though freedom of expression is not written into the US Constitution, as are many fundamental rights in the USA, most people would agree that this right is fundamental and should generally be protected, however the level to which it should be protected may differ from person to person.
Most people would think that freedom of expression is fundamental because it allows for conversations in two different areas of life: legal discourse and everyday life. Most Americans believe that freedom of expression is a fundamental right that should be protected. People should be allowed to express their opinions without fear of being “cancelled” or that they will be harmed for voicing their opinion. The Knight Foundation produced a survey on Americans’ views on free speech and found that 91% of them think that protecting it is crucial to protecting American Democracy (Knight Foundation, 2022). This necessity for freedom of speech becomes especially true when two people have an opposing viewpoint on something because they should be able to disagree freely, without fear of punishment. However, in a New York Times Article, most Americans have begun to bite their tongue because they’re afraid of “cancel culture,” a phenomenon that occurs when a politician, celebrity, or another influential person speaks in a certain way that causes a withdrawal of support. Some people may feel like others don’t need to express everything they’re thinking. In this article, “America has a Free Speech Problem,” the authors say that a poll created by Times Opinion and Siena College found that “84 percent of adults said it is a ‘very serious’ or ‘somewhat serious’ problem that some Americans do not speak freely in everyday situations because of fear of retaliation or harsh criticism” (America Has a Free Speech Problem, 2022). In an interview between Sean Illing and Brian Leiter for Vox, Leiter explains that “we have massive amounts of worthless, dangerous speech in the public sphere right now” (Illing, 2019). It seems as if Leiter isn’t saying that freedom of speech is a “bad” thing, so much as that some people may be abusing this freedom. If speech were more regulated, and people weren’t allowed to post whatever they wanted without being fact-checked, then the speech could be less damaging—there could be less fake news, for instance. Limitations on freedom of expression could under such circumstances prevent unnecessary harm. Justice Murphy, in Chaplinsky v New Hampshire, argued that there are “certain categorical exceptions to First Amendment protections, including obscenities, certain profane and slanderous speech, and ‘fighting words’ (Chaplinsky v New Hampshire). This case is still upheld today, so anyone engages in such speech may be punished by the law. While freedom of expression protects most people’s actions, it does not allow people to express themselves however they want. Some exceptions have been asserted over the years in American law. In Bethel School District No. 403 v. Fraser, a student was reprimanded by school officials for making a “lewd and vulgar speech” at an assembly. This is similar to Schenck v. United States, which ruled that yelling “fire” in a crowded theatre is not protected by the first amendment. So, the constitution has allowed for “freedom of speech,” there are exceptions when it seems it’s not appropriate for the setting. In this article, she mentions that “people can’t go around saying what they think all the time when that speech infringes on other’s rights. There needs to be a limit for what people do say, where people say it, when people say it” (Hanna, 2022). While they may not be rare, exceptions to the protection of freedom of expression should be made when our words negatively impact someone else. It seems as if freedom of expression in the United States is less censored than in other parts of the world. In nations such as North Korea, Turkmenistan, Libya, Syria, and Belarus “the media is either state-controlled or silenced, the internet is filtered, and highly censored and restrictive laws are used—often in tandem with fear and intimidation—to prevent the spread of ideas and information” (Countries with Freedom of Speech 2024). While freedom of expression seems to be a priority in the United States, other countries do not protect people’s rights to express themselves freely. Freedom of expression is protected when it does not cause unnecessary harm or potentially put someone at risk. And on the off chance that it does negatively affect someone, or causes them harm, then there should be exceptions to their ability to freely express themselves. References: Knight Foundation. 2022. “Free Speech for All? Poll Reveals Americans’ Views on Free Expression Post-2020.” Knight Foundation. January 6, 2022. https://knightfoundation.org/press/releases/free-speech-for-all-poll-reveals-americans-views-on-free-expression-post-2020/. The Editorial Board. 2022. “America Has a Free Speech Problem.” New York Times, March 18, 2022. https://www.nytimes.com/2022/03/18/opinion/cancel-culture-free-speech-poll.html. Illing, Sean. 2019. “Free Speech: Is It Actually a Good Thing?” Vox. Vox. March 4, 2019. https://www.vox.com/2019/3/4/18197209/free-speech-philosophy-politics-brian-leiter. “Chaplinsky v. New Hampshire.” 2019. Oyez. 2019. https://www.oyez.org/cases/1940-1955/315us568. Hanna, Verina. 2022. “Limitations Are Necessary for Freedom of Speech.” THE ALGONQUIN HARBINGER. March 17, 2022. https://arhsharbinger.com/29742/opinion/limitations-are-necessary-for-the-freedom-of-speech/#:~:text=The%20limitations%20of%20the%20freedom. World Population Review. 2022. “Countries with Freedom of Speech 2020.” Worldpopulationreview.com. 2022. https://worldpopulationreview.com/country-rankings/countries-with-freedom-of-speech. | |
| Freedom of Religion | Article 18 of the Universal Declaration of Human Rights, a landmark document within the field of international human rights law, recognizes freedom of religion as a fundamental and intrinsic human right. It establishes the right to freedom of religion as encompassing an individual’s “freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance” (UN General Assembly 1948, 1). Since the adoption of the Universal Declaration by the United Nations General Assembly in December of 1948, freedom of religion is guaranteed in the charters and constitutions of several regional organizations, including the Organization of American States (OAS), the Council of Europe (CoE), and the African Union (AU), as well as their member states, reinforcing the belief that the right is fundamental and should generally be protected, with rare exceptions, on an international level. Individual states vary on their interpretation and length to which they guarantee the freedom, though a majority include it within their legal code and consider it a human right, with few nations serving as notable exceptions.
The right to freedom of religion is protected under international human rights law, appearing in various international documents and treaties, most markedly in the Universal Declaration of Human Rights and the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. The United Nations considers “that religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed” (UN General Assembly 1981, 1). The organization expects its member states to promote and encourage universal respect and observance of the right, stating that the points set forth relating to freedom of religion in the UN Declaration on the Elimination of All Forms of Intolerance “shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice”, with few exceptions: “Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others” (UN General Assembly 1981, 3). With 193 Member States, the UN is the world’s largest intergovernmental organization, pushing for the protection of the right to freedom of religion internationally and its recognition as a fundamental human right by all nations under international human rights law. The Organization of American States (OAS) is an international organization that brings together “all 35 independent states of the Americas and constitutes the main political, juridical, and social governmental forum in the [Western] Hemisphere” (“OAS: Who We Are” 2023). It is committed to upholding freedom of religion, with the Declaration of the OAS General Secretariat on the Promotion and Protection of Freedom of Religion or Belief reaffirming the organization’s belief that “guaranteeing freedom of religion or belief continues to be a fundamental responsibility of States” as it is “essential to understand that religious freedom or belief as a human right is, in turn, linked to the defense of the rights of all individuals and groups, in all areas” (“Declaration of the OAS General Secretariat.” 2023, 1). Currently, every country in the Americas includes a provision protecting freedom of religion in their constitution, though the United States Commission on International Religious Freedom raised concern for indigenous peoples in Latin America in their 2023 annual report: “Indigenous peoples in Latin America have long faced a series of collective and individual threats to the full enjoyment of their religious freedom and related rights” (75). It also focused on Cuba and Nicaragua as countries of particular concern, citing the Nicaraguan regime’s “campaign of harassment and severe persecution against the Catholic Church by targeting clergy, eliminating Church-affiliated organizations, and placing restrictions on religious observances” and the Cuban government’s tight control over religious “activity through surveillance, harassment of religious leaders and laypeople, forced exile, fines, and ill treatment of religious prisoners of conscience”. (20-30). The report did not note other concern or violation of freedom of religion in the Americas region in other states. The right is generally protected across America and is considered a fundamental human right. Article 8 of the African Charter on Human and Peoples’ Rights, adopted by the African Union in 1981, states that “freedom of conscience, the profession and free practice of religion shall be guaranteed” and that “no one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms” (Organization of African Unity 1981, 4). The African Union is a continental union consisting of 55 member states, with a majority including provisions protecting freedom of religion in their constitutions, though there are a few countries where it is very limited or violated. The U.S. Commission on International Religious Freedom highlighted Eritrea, Mauritania, Nigeria, Central African Republic, and Egypt for a lack of religious freedom, citing instances of religious persecution and punishment for certain religious minorities (“2023 Annual Report” 2023, 11). The report did not find any serious violations in other African nations, with most prohibiting religious discrimination and allowing individuals to practice their religion. The Council of Europe (CoE) also holds freedom of religion to be a fundamental right, explicitly stating so in Article 9 in the Convention for the Protection of Human Rights and Fundamental Freedoms. The document states, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance” noting few exceptions as “are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others” (European Court of Human Rights 1950, 11). With the end of the Cold War, virtually all of Europe has an unprecedented general freedom of religion guaranteed by their constitution (Juviler 2003, 859). However, there have been concerns with rising Islamophobic legislation, including the banning of particular religious clothing like burqas (U.S. Department of State 2022, 6). Though practices vary, the freedom is held in high standard and seen as a core human right. The Asia Pacific Forum (APF) is a regional grouping of the Global Alliance of National Human Rights Institutions (GANHRI) that focuses on monitoring, promoting, and protecting human rights in Asia and the Pacific. It is a coalition of 25 independent national human rights institutions that aim to uphold human rights, including freedom of religion, educating and reaffirming the “purposes and principles of the Charter of the United Nations with regard to the promotion and encouragement of respect for all human rights and fundamental freedoms for all without distinction as to race, sex, language or religion” (Asia Pacific Forum 2013, 205). The Asia Pacific Forum notes that unlike other regions in the world, “there is no regional court or protection system in the Asia Pacific that people can turn to when their human rights are abused,” though they can help “shape laws, policies, practices and attitudes that create strong, fair and inclusive communities” to combat this (“About the Asia Pacific Forum 2023). Several countries in Asia were listed in the U.S. Commission on International Religious Freedom’s annual report on freedom of religion as countries of particular concern. It noted Afghanistan, China, Iran, Pakistan, Saudi Arabia, and Vietnam, among others (“2023 Annual Report” 2023, 11). Though most states in the continent protect freedom of religion in their legal code, there is quite a discrepancy in their practices and extent to which they safeguard it. The report noted that Vietnamese authorities “intensified their control and persecution of religious groups—especially unregistered, independent communities” while the Saudi government “continued to systematically deny non-Muslims the ability to build houses of worship or worship in public” and create anti-blasphemy and apostasy laws (“2023 Annual Report” 2023, 38-46). It further states that China “has become increasingly hostile toward religion, implementing campaigns to ‘sinicize’ Islam, Tibetan Buddhism, and Christianity to remove alleged ‘foreign influences’” and in Afghanistan the government of the “Taliban also either actively targets, discriminates against, or outright denies the existence of many vulnerable religious minorities” (“2023 Annual Report” 2023, 12-16). On an international level, there is a belief that freedom of religion is a fundamental human right that should be protected, with few exceptions. Intergovernmental organizations, which a majority of the countries in the world belong to, such as the UN, the AU, and the CoE, reaffirm the importance of the right and push its members to uphold it. On an individual state by state basis, however, the amount of protection and importance the right receives varies. The majority of countries include provisions safeguarding freedom of religion in the constitution, but their rules and regulations differ, as well as their practices. Overall, the right to freedom of religion is generally regarded as an intrinsic and fundamental by a large number of states and other actors. References: “About the Asia Pacific Forum.” 2023. Asia Pacific Forum. Accessed July 4. https://www.asiapacificforum.net/about/. “Annual Report” 2023. United States Commission on International Religious Freedom. https://www.uscirf.gov/sites/default/files/2023-05/2023%20Annual%20Report.pdf Asia Pacific Forum. 2013. Human Rights Education: A Manual for National Human Rights Institutions. Asia Pacific Forum National Human Rights Institutions. https://apf- prod.s3.amazonaws.com/media/resource_file/2019_HRE_Manual_for_NHRIs.pdf?AWS AccessKeyId=AKIA57J6V557ISASX34R&Signature=NXImyA3dX%2FFHi6h08a uFkAwzEnE%3D&Expires=1688487584. “Declaration of the OAS General Secretariat.” 2023. Organization of American States. General Secretariat https://www.oas.org/en/media_center/press_release.asp?sCodigo=E-008/23. European Court of Human Rights. 1950. European Convention on Human Rights. Council of Europe. https://www.echr.coe.int/Documents/Convention_ENG.pdf. Juviler, Peter. 2003. Freedom and Religious Tolerance in Europe . University of Michigan. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1316&context=mjil. “OAS: Who We Are.” 2023. Organization of American States. https://www.oas.org/en/about/who_we_are.asp. Organization of African Unity. 1981. African Charter on Human and Peoples’ Rights. https://au.int/sites/default/files/treaties/36390-treaty-0011.pdf. UN General Assembly. 1981. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, OHCHR. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination UN General Assembly. 1948. Universal Declaration of Human Rights, 217 A (III), https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf U.S. Department of State. 2022. France 2022 International Religious Freedom Report. https://www.state.gov/wp-content/uploads/2023/05/441219-FRANCE-2022- INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf. | |
| Freedom of the Press | Generally, exceptions to freedom of the press have been rare in the USA. In Britain, somewhat more relaxed libel laws leave organs of the media more open to suits. However, both consider rare exceptions to these tendencies (Shapiro 2015). In both nations, there are arguments to push more towards the other country’s position. In the United Kingdom, libel law was used to take a U.S. author to court for their writing. This form of “libel tourism” is common due to the ability to sue writers and the press for libel in the UK, increasing the odds of the prosecution winning (Shapiro 2015). The UK’s successful suing of the author in this libel case caused the United states to create Rachel’s Law. This prevented the upholding of the UK ruling in the United States (Glanville 2008). This law in particular is a standard example of the U.S. maintaining greater protections of freedom of the press. In more recent years, the UK has moved closer to stricter libel laws, similar to the United States. The High Court in London dismissed the complaint that journalist Carole Cadwalladr defamed businessman and pro-Brexit movement founder Arron Banks, marking a huge victory for public-interest reporting. This 2022 case served as a major win for stricter exceptions to freedom of the press (“UK: Journalist’s Victory in Libel Case Endorses Media Freedom” 2022).
In the case of the Dominion Voting System versus Fox News, libel laws were essential for the Fox defamation lawsuit (Peltz and Riccardi 2023). The court papers even expressed a profound concern about the broadcaster's actions, likely prompting the settlement money Fox eventually gave to Dominion (Peltz and Riccardi 2023). This demonstrates a certain level of ability to meet the standard for libel/defamation suits in the U.S. For most countries, arguments against freedom of speech and of the press can be broken down into national security, fake news and misinformation, privacy & ethics, sensationalism for profit, and hate speech and incitement (“The Ongoing Challenge to Define Free Speech” 2023). The complicated and ongoing discussion over how to strike a balance between these issues and press freedom protection differs from nation to nation and reflects various cultural, legal, and political settings. Lately, societies have seen the real world consequences of these freedoms and the exceptions to them. However, Informing the public, promoting democracy, and holding governments responsible all depend on a free press. In order to prevent suffocating free speech, encouraging censorship, or smothering dissenting voices, restrictions on press freedom must be carefully considered. Because technology has grown at a pace too rapid for regulation and societal understanding keep up, it has led to issues with misinformation interfering with governmental processes. Deepfakes have been among these developing concerns. Political experts worry that in order to influence an election, political strategists may create attack commercials utilizing computer-generated "deepfake" films and audio, which they may then release at the last minute (McKenzie 2023). France has made media regulations to aid in preventing election misinformation. French officials urge news organizations and the public to refrain from sharing any information during the media blackout period required by electoral regulations. These electoral regulations are a noticeable exception that were put in place after Macron’s emails were leaked in a hack prior to the 2017 election. There is now a 44 hour blackout of media before all major French elections (“France Doubles Down on Countering Foreign Interference Ahead of Key Elections” 2021). Bibliography “France Doubles Down on Countering Foreign Interference Ahead of Key Elections.” 2021. Accessed October 27, 2023. https://www.lawfaremedia.org/article/france-doubles-down- countering-foreign-interference-ahead-key-elections-0. Glanville, Jo. 2008. “‘Rachel’s Law’ Protects Free Expression.” Index on Censorship. April 2, 2008. https://www.indexoncensorship.org/2008/04/rachels-law-protects-free-expression/. McKenzie, Bryan. 2023. “Is That Real? Deepfakes Could Pose Danger to Free Elections.” UVA Today, August 24, 2023. https://news.virginia.edu/content/real-deepfakes-could-pose-danger-free-elections. Peltz, Jennifer, and Nicholas Riccardi. 2023. “How Election Lies, Libel Law Were Key to Fox Defamation Suit.” AP News, April 18, 2023. https://apnews.com/article/fox-news-dominion-lawsuit-trial-explainer-trump-fbd401a951905879d837a8860b3bec5e. Shapiro, Ari. 2015. “On Libel And The Law, U.S. And U.K. Go Separate Ways.” NPR, March 21, 2015. https://www.npr.org/sections/parallels/2015/03/21/394273902/on-libel-and-the-law-u-s-and-u-k-go-separate-ways. “The Ongoing Challenge to Define Free Speech.” Accessed October 6, 2023. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/the-ongoing-challenge-to-define-free-speech/. “UK: Journalist’s Victory in Libel Case Endorses Media Freedom.” 2022. Article 19. June 13, 2022. https://www.article19.org/resources/uk-journalists-victory-endorses-media-freedom/. | |
| Privacy Rights | The right to privacy is expressed in many places: Article 12 of the Universal Declaration of Human Rights ( 1948) , Article 17 of the International Covenant on Civil and Political Rights ( 1996) , Article 7 of the Charter of Fundamental Rights of the European Union (CFREU) ( 2009) , and Article 8 of the European Convention on Human Rights (ECHR) ( 1950) . Nationally, this right has been cited in the 1988 Brazil Constitution and United States case law (derived from the US Constitution). In India, the Supreme Court ruled unanimously in 2017 that the right to privacy for all people falls under Article 21, which provides the “protection of life and personal liberty” (McCarthy, 2017; Mahaprata & Choudhary, 2017) . However, many exceptions to privacy are also listed alongside the right to privacy in these supreme documents, despite the belief in its inviolability.
Article 8(2) of the ECHR provides that privacy interference can only occur in instances “of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 7 of the CRFEU can be breached by a search or arrest warrant issued by any EU state (European arrest warrant, n.d.; European evidence warrant, 2006) . In Article 5 Sections X-XII, the Brazilian Constitution outlines the right to privacy in areas related to private life, the home, and correspondence. These sections also clearly outline exceptions; Section XI recognizes that officials can enter a home “in cases of flagrante delicto, disaster or rescue, or, during the day, with a court order,” and Section XII allows criminal proceedings to methodically breach this privacy. In the United States, privacy zones – derived from the First, Third, Fourth, Fifth, and Ninth Amendments in Griswold v. Connecticut ( 1965) in conjunction with the Due Process Clause in the Fourteenth Amendment – have extended privacy to Americans in various ways (Privacy, n.d.). Again, a court-issued search or arrest warrant may breach this right to privacy, especially in the home. Data Privacy The US has very little data privacy due to a lack of legislation and regard. Most data regulation is due to compliance with the 2018 implementation of the EU’s General Data Protection Regulation, which applies to any company collecting any data on European citizens or companies with a large number of customers based in Europe (Wolford, n.d.). On the other hand, the Brazilian Supreme Court extended these Article 5 protections to data privacy in 2020 (Bioni & Monteiro, 2020) . Additionally, New Zealand’s Information Privacy Principles (IPP) in Article 22 of the Privacy Act 2020 protect data collection, but also provides some exceptions in IPP 11 and 12. Relationships In 2018, the Indian Supreme Court declared part of Section 377 unconstitutional against Articles 14, 15, 19, and 21 of the Constitution (Rai, 2018) . This ruling allowed those in LGBT relationships privacy in the home, but again, this privacy was not granted in public spaces (Rai, 2018) . Similarly, the right to a private relationship went through the courts in the United States. First, it was granted to interracial couples in 1967 through Loving v. Virginia ( 1967) and then to same-sex couples through Obergefell v. Hodges in 2015. In Brazil, relationships are protected under Article 5(X), which states “personal intimacy, private life, honor and reputation are inviolable, guaranteeing the right to compensation for pecuniary or moral damages resulting from the violation thereof” (Brazil Constitution, 1988) . Communication Private communication is protected under Article 5(XII) of the Brazilian Constitution ( 1988) . In the United States, the right to private communication became convoluted with the 2001 USA PATRIOT ACT, which authorized the interception and disclosure of communication under certain circumstances. References: Bioni, B.R. & Monteiro, R.L. (2020, June 9). A landmark ruling in Brazil: Paving the way for considering data protections as an autonomous fundamental right. Future of Privacy Forum. https://fpf.org/blog/a-landmark-ruling-in-brazil-paving-the-way-for-considering-data-protection-as-an-autonomous-fundamental-right/ Brazil Constitution. (1988). https://www.constituteproject.org/constitution/Brazil_2017.pdf?lang=en Charter of Fundamental Rights of the European Union. Dec. 1, 2009. https://fra.europa.eu/en/eu-charter Constitution of India. (1950). https://legislative.gov.in/constitution-of-india European arrest warrant. (n.d.). European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/european-arrest-warrant_en European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf European evidence warrant. (2006, June 1). European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/commission/presscorner/detail/en/PRES_06_168 | |
| Voting Rights and Suffrage | For several decades, the right to vote has been widely recognized as fundamental to fair, participatory government by a wide variety of international organizations and individual nations. The most prominent example comes from the United Nations’ International Covenant on Civil and Political Rights of 1966, which recognized that “every citizen shall have the right and the opportunity...to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors” (UN General Assembly 1966). In addition to international decrees and declarations identifying the importance of suffrage, international election monitoring and observation bodies exist around the world to protect citizens’ ability to vote and analyze countries’ electoral processes. There is strong global consensus that voting rights ought to be protected and are an essential element of successful representative democracies.
In an American context, the United States Constitution explicitly protects citizens’ right to vote in Section II of the Fourteenth Amendment, the Fifteenth Amendment, Nineteenth Amendment, and Twenty-Fourth Amendment. The Voting Rights Act of 1965 and its subsequent amendments also describe the right to vote as an “inherent constitutional right” (H.R. 4249, 91st Congress 1970). Additionally, prominent Supreme Court cases concerning voting rights such as, Reynolds v. Sims (1964) , Harper v. Virginia Board of Elections (1966) , and Kramer v. Union Free School District (1969) convey the fundamental nature of suffrage, pushing back against previous interpretations by the Court in Minor v. Happersett ( 1875) that “the Constitution...does not confer the right of suffrage upon any one” (Supreme Court of the US 1875) and even older perceptions of voting as a privilege that had to be earned through societal metrics such as property ownership (Behrens 2004, 232). In Reynolds, the Court established that: "Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." Harper concerned the constitutionality of poll taxes, and the Court reasoned that “wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned” (Supreme Court of the US 1966). Kramer similarly outlined that “any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government” (Supreme Court of the US 1969). Both majority opinions in Reynolds and Harper also relied upon previous rationale established in Yick Wo v. Hopkins (1886) that “though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will, under certain conditions, nevertheless [the right to vote] is regarded as a fundamental political right, because preservative of all rights” (Supreme Court of the US 1886). In spite of these general beliefs legal precedent, certain members of society are still excluded from this fundamental right for reasons that are widely debated. Citizenship, for example, is often a requirement for suffrage. However, some countries, including certain local governments in the United States, allow noncitizens to vote in local elections after they have met certain residency requirements (Earnest). Felons are also often restricted from voting. In most countries with restrictions on felon voting, these penalties only take place when individuals are serving their prison sentence. In the United States, however, felon voting policy, like nearly all electoral policy, is a state decision. Restrictive felon voting policies are indicative to some experts that the United States has “failed to give the right to vote its true status as a fundamental right” (Behrens 275). In addition to the explicit prohibition of certain individuals from voting, unequal access to voting precincts and absentee drop-off locations as well as reduced voting hours and early voting periods also undermine the extent to which voting rights are protected around the world. Beyond restrictions of where citizens can vote, more explicit voter intimidation and election-related violence are employed even in countries that have signed on to international agreements outlining the importance of voting rights. Partisan gerrymandering, which the Supreme Court has defined as federally “nonjusticiable” in Rucho v. Common Cause (2019), also dilutes the impact of certain citizens’ votes, undermining their ability to meaningfully exercise suffrage. Additionally, policies implemented to address voter fraud such as voter identification can also limit overall voting access. Critics of voter identification argue that requiring an often-times narrow list of permissible forms of identification puts an undue burden on citizens who are less likely to possess valid identification and constitute a modern form of a “poll tax” (Reeves). References: Behrens, Angela. "Voting-Not Quite a Fundamantal Right-A Look at Legal and Legislative Challenges to Felon Disfranchisement Laws." Minn. L. Rev. 89 (2004): 231. David C. Earnest, “Noncitizen Voting Rights: A Survey of an Emerging Democratic Norm,” 2003: http://citizenshiprightsafrica.org/wp-content/uploads/2016/01/Earnest_APSA_non-citizen-voting_2003.pdf Celina De León, “Political Scientist Keith Reeves '88 Reacts to Latest Ruling on Pa. Voter ID Law,” October 2nd, 2012: https://www.swarthmore.edu/news-events/political-scientist-keith-reeves-88-reacts-to-latest-ruling-pa-voter-id-law United Nations, International Covenant on Civil and Political Rights, 1966: https://www.ohchr.org/sites/default/files/ccpr.pdf |