andersen-ottaway lecture

2002 Andersen Lecture
Santiago A. Canton
Executive Secretary, Inter-American Commission on Human Rights

International Organizations And The Protection Of Press Freedom

Thank you very much, Jim, for the introduction. Let me first welcome my good friends from the OAS, Ambassador Tomic from Chile, Ambassador Gil from Argentina, Ambassador Durand from Canada and Ferrero from Peru and I hope I mentioned everybody. I know someone is behind one of the columns, and I apologize if that’s the case.

I want to thank the World Press Freedom Committee for inviting me to give this year’s Andersen Lecture. It is truly an honor to be selected to give such an important lecture, particularly given the array of impressive names that have previously shared this podium.

I feel very privileged to have had the opportunity to serve as the first OAS Special Rapporteur for Freedom of Expression. In my new role as Executive Secretary, I have continued to support the work of the new Special Rapporteur, Eduardo Bertoni, and to make freedom of expression issues a priority on the Commission’s agenda for discussion with the OAS member States, because I recognize that press freedom is fundamental for true democracy and respect for human rights. 

I am also pleased to see attention focused on the situation of journalists in the Americas. Freedom of the press continues to face serious challenges in the Americas, including assassinations of journalists and other acts of extreme violence. In the first two-and-a-half years of this new century, 20 journalists were murdered in the Americas because of their work.

One of the most recent was Brazilian journalist Domingos Sávio Brandão de Lima Júnior. Sávio Brandão was the owner of, and a columnist for, the daily newspaper Folha do Estado of the city of Cuiaba, Mato Grosso. On September 30 this year, he was shot several times in the newspaper’s offices and was killed. It is believed that his murder was related to the newspaper’s numerous investigations into the existence of gangs involved in undercover gambling and drug trafficking.

Another journalist, Flavio Bedoya, was killed on April 27, 2001 on a public road by two unknown individuals.  Bedoya was a correspondent for the weekly publication Voz in the Tumaco area of Nariño province in Colombia. The 52-year old journalist had received death threats after publishing an interview with a member of one of the armed dissident groups in Colombia.

It was in this context of violence and hostility towards the press that the Inter-American Commis­sion on Human Rights of the Organization of American States created the Office of the Special Rapporteur for Freedom of Expression.

At the time the Special Rapporteur’s mandate was being established, other specialized mandates had already been established in two other inter-governmental organizations: the United Nations and the Organization for Security and Cooperation in Europe.

When these mandates were created, the WPFC and many press freedom advocates seemed skeptical of their potential to monitor and promote press freedom in the world because, as part of inter-governmental organizations, these mandates essentially derive their powers and authority from governments, who are often the ones who want to limit press freedom in the first place.

Nonetheless, when I was appointed Special Rapporteur for Freedom of Expression in 1998, I was welcomed by the WPFC. You will notice that I said I was “welcomed”, not that I was “warmly welcomed.”

But I think that my presence here today is testimony to the fact that the specialized mandates on freedom of expression, at least in the case of the Organization of American States, have exceeded the expectations of the World Press Freedom Committee. 

The WPFC in particular has gone from being somewhat skeptical about the Office of the Special Rapporteur’s ability to bring about greater press freedom in the region to being one of the Office’s greatest advocates. 

This is a partnership that the Office of the Special Rapporteur, the Commission and I value very highly. 

The Office of the Special Rapporteur came about as a direct result of the support of the OAS member States. At the Second Summit of the Americas, celebrated in Chile in 1998, the Heads of State and Government expressed their concern about the state of the right to freedom of expression in their countries and stated in the Declaration of Santiago:

We agree that a free press plays a fundamental role in (the area of human rights) and we reaffirm the importance of guaranteeing freedom of expression, information and opinion. We commend the recent appointment of a Special Rapporteur for Freedom of Expression, within the framework of the Organization of American States.

At the same Summit, the Heads of State and Government made a commitment to support the Office of the Special Rapporteur for Freedom of Expression. In this regard, the Plan of Action adopted by the Summit called on governments to:

Strengthen the exercise of and respect for all human rights and the consolidation of democracy, including the fundamental right to freedom of expression and thought, through support for the activities of the Inter-American Commission of Human Rights in this field, in particular the recently created Special Rapporteur for Freedom of Expression.

In 2001, at the Third Summit of the Americas in Quebec City, Canada, the Heads and State and Government reaffirmed their support of the Office of the Special Rapporteur for Freedom of Expression.

The decision to create the Office of the Special Rapporteur for Freedom of Expression in the Inter-American system came about at the end of two decades of major political change in the Americas. 

People around the hemisphere had turned their backs on oppressive, authoritarian regimes to usher in more open governments democratically chosen in transparent elections. 

Free and fair elections became the road to return to democracy.

But as we are all aware, although elections are a prerequisite for democracy, they are not in and of themselves sufficient to guarantee a true democracy.

Other elements inherent to democratic society must also be fostered, such as recognition and respect for human rights, effective and independent legislative and judicial branches of government, a party system that facilitates open lines of communication between citizens and leaders, an active civil society, and, above all, wide-ranging freedom of expression and access to information to ensure that all citizens have the information they need to make decisions.

In a true democracy, the state is a vehicle for ensuring the common good, deriving its powers from the consent of the governed. It requires a service-oriented approach to public administration. 

In such a system, information belongs to the individual members of society who have delegated the management of public affairs to their representatives. It is mainly through freedom of expression and access to information that members of society are able to oversee the conduct of their elected representatives.

Freedom of expression and access to information become particularly important where democracies are weak, as they still are in many parts of the Americas. 

When the institutions of the judicial and legislative branch are insufficiently developed so as to provide effective checks and balances against a democratically elected executive, there is a great risk of a reversion to a de facto authoritarian system. 

A free press can be an effective counterbalance to an overly powerful executive, opening a space in which other democratic institutions can mature and eventually become effective counterweights to executive power.

When democracy is weak, and freedom of the press is also limited, authoritarian forces often reemerge and democracy and freedom of expression slowly vanish together.

In addition to their role in the effective functioning of democracy, freedom of expression and access to information plays an important role in assuring the protection of other fundamental human rights. 

This is particularly true in areas where the public institutions designed to act as checks on authorities and individuals are still weak. 

For example, in many cases the Judicial Power fails to investigate situations brought to its attention and punishes guilty parties. In countries affected by such problems, the press has become the main check on authorities and individuals alike by bringing to light illegal or abusive acts previously unnoticed, ignored or perpetrated by authorities. 

This function of the press not only plays a role in preventing impunity for human rights abuses, but also for helping countries in terms of healing the wounds of the past so that they can look to the future.

Freedom of expression and access to information are also crucial for a country’s economic development, as was so eloquently stated by James Wolfensohn, President of the World Bank, during the 1999 Andersen Lecture. 

Government corruption is the largest inhibitor of equitable economic development and the best way to fight corruption is to expose corrupt practices to the light of public scrutiny.

Looking at the problem in this light, it is troubling that so much information on economic matters is kept from the public in many countries. 

I can recall discussions with a government during one site visit of the Commission, for example, when the government was debating whether or not to make an agreement with the World Bank available to the public.  These types of decisions, which have a large impact on society, must be open to public supervision and scrutiny.

It is because of their role as public watchdogs that members of the press -- like Domingos Sávio Brandão de Lima Júnior and Flavio Bedoya -- often become targets for violence and intimidation aimed at silencing them.

Murders, assaults, threats and intimidation not only silence the individual journalist, they also have a profound effect on the individual’s colleagues, generating a climate of fear and self-censorship.

Press freedom in the Americas is also threatened in many other ways, preventing the press from carrying out its role in advancing democracy and exacting accountability for governmental wrongdoing. 

In past authoritarian regimes of the Americas, freedom of the press was brutally controlled through seizure of publications, censorship, arrests and restrictive press laws. 

Today, many of the old tactics have been softened and, at the same time, new, more subtle and sophisticated means of curtailing press freedom have emerged.

Sixteen countries still maintain desacato, or contempt laws, a holdover from the days of authoritarian rule.

However, these laws are seldom used in practice, as they have been nearly universally condemned by international human rights organizations.

Instead, states today are resorting a more insidious practice of using criminal libel and slander laws in the same manner as desacato laws, to silence journalists who report unfavorably about the actions of public officials.  Another more recent trend is the use of legitimate regulatory and other mechanisms in a discriminatory manner to reward or punish journalists for what they write.

Compounding the situation, there is also a clear lack of access to important information in the hands of the government in many countries, essential if the right to freedom of expression is to be truly meaningful. 

Where access to information laws work, they can be used to bring to light abuses and improprieties committed by public officials and to exact accountability. 

A recent dramatic example of the use of access to information laws to exact accountability for human rights violations was the US’s declassification and release in August 2002 of more than 4,600 documents on human rights violations committed under the military dictatorship in Argentina between 1976 and 1983. 

These records will assist in the prosecution of crimes that have remained in impunity until now and will provide information to survivors and family members of many individuals who disappeared about the fate of their loved ones. 

It is not only the US Freedom of Information Act that has been successful in bringing about accountability for human rights abuses in the Americas; many states in the Americas have at least formal protections in place for the right to access to information. 

The action of habeas data, or the right to obtain personal information contained in public or private databases, has been very important in many countries in exacting accountability for human rights abuses and helping countries scarred by human rights abuses reconcile and move forward, which can only be accomplished by exposing the truth and punishing the guilty.

However, in many states in the region, there are no clear and simple procedures for the press and members of the public to request information and no implementing guidelines for officials to use in deciding whether or not to release information. As a result, the process of obtaining information is often onerous and subject to arbitrary decision-making.

These problem areas that I have mentioned -- the safety of journalists, the existence and use of restrictive press laws and the lack of effective procedures for access to information -- have been the constant focus of the Office of the Special Rapporteur for Freedom of Expression since its beginnings.

The Office has made significant headway with respect to each of these problems.

With respect to protecting the physical integrity of journalists, the Office has acted on several fronts. 

Since it was created in 1998, the Office has developed an extensive hemispheric network of NGOs, media, and journalists to allow for the rapid transmission of information about possible violations of freedom of expression within the OAS member States. 

The Office uses this information in a variety of ways, depending on the type and severity of the problem. It may communicate its concern to the government involved or issue a press release. 

The Office also alerts the Commission on situations where freedom of expression is at risk and, when necessary, urges the Commission to adopt precautionary measures.

“Precautionary measures” are measures that the Commission requests a member State to undertake to protect individuals threatened or at risk of being harmed physically or have suffering some other type of irreparable damage.

In the event that a state fails to comply adequately with the precautionary measures requested, the Commission may ask the Inter-American Court of Human Rights to order “provisional measures.” 

Since 1998, the Commission has issued precautionary measures in more than 30 cases in order to prevent irreparable harm to journalists and other media workers and has asked the Court for provisional measures in two such cases, most of these at the recommendation of the Office of the Special Rapporteur. 

The Office has been instrumental in all of these cases in advocating for the interests of the individuals in need of protection and in educating the media as a community about the protection mechanisms available through the Inter-American human rights system.

We believe that the Office’s involvement in these activities may have helped save many journalists’ lives.

The Office of the Special Rapporteur has also challenged laws and practices that limit freedom of expression in the countries of the Americas. It does this through various means. 

First, the Office has built upon the groundwork laid by the Commission in this area prior to the establishment of the Office.

In 1994, the Commission entered into a Friendly Settlement with the government of Argentina in a case in which a journalist, Horacio Verbitsky, had been convicted of desacato for an allegedly defamatory reference made about a Supreme Court Justice in an article he wrote. 

As a result of the negotiations between the parties, facilitated by the Commission, Argentina repealed its desacato law. As a term of the settlement, the Commission published a report analyzing the compatibility of desacato laws with Article 13 of the American Convention on Human Rights and it determined that such laws were incompatible with Article 13.

Based on this historic achievement, the Office of the Special Rapporteur and the Commission have campaigned for the repeal of desacato laws in all countries of the Americas.

Due in part to these efforts, the desacato laws in Paraguay and Costa Rica were repealed. In Chile, one desacato provision was repealed and a bill to repeal another is under consideration.

Bills to repeal desacato provisions have also been introduced in other countries, showing at least an inclination towards reform. Other states have also considered modifying their criminal libel and slander laws so that these are not applied in the same manner as desacato laws.

Another important breakthrough brought about by the Office of the Special Rapporteur for Freedom of Expres­sion was the Declaration of Principles on Freedom of Expression, which was approved by the Commission at its 108th regular sessions in October 2000. 

The Declaration is composed of 13 principles including the right to access to information held by the state; the duty of states to provide information; the prohibition of prior censorship; the rejection of prior conditions on the dissemination of information (such as veracity, timeliness or impartial­ity); the duty of the state to prevent and punish severe violations of freedom of expression such as assassination, kidnapping, intimidation and threats directed at journalists; the rejection of desacato laws; and the elimination of monopolies or oligopolies in the ownership and control of the means of communication. 

The Declaration is being used by legal practitioners all over the Americas to advocate for the right to freedom of expression both before domestic tribunals and before the human rights bodies of the Inter-American system.

The Office’s advocacy in individual cases brought before the Commission has led to landmark decisions that have had both a direct impact in restoring the rights of victims whose right to freedom of expression has been violated and a broader societal impact. 

For example, in the case of Baruch Ivcher v. Peru, the judgment was instrumental in assuring the restitution of ownership of a TV channel to Mr. Ivcher, who had suffered retaliation for his critical reporting on corruption in the Fujimori administration in Peru.

The judgment in the case of The Last Temptation of Christ v. Chile led to the abolition of prior censorship of films in Chile and its replacement with a film rating system for the protection of minors.

These and other cases have an impact beyond the individual case as precedents for the observance of human rights standards and respect for freedom of expression within the domestic jurisdiction of the member States. 

The resolution and publicity of these cases have also led to an increase in petitions to the Commission by journalists, media workers, and others who have had their right to freedom of expression curtailed by governmental intervention. 

The Commission currently manages approximately 930 cases per year. Of those cases, about 40 active open cases and more than 70 petitions involve a freedom of expression component.

Because of the importance of access to information and habeas data laws in bringing about accountability, the Office of the Special Rapporteur has heavily emphasized the need to pass access to information laws in countries that do not have such laws and strengthen laws in countries where this right is already protected. 

To this end, the Office published a report on access to information in its 2001 annual report and provided technical advice to a number of countries in drafting access to information bills. In 2002, Mexico and Panama passed access to information laws. A number of other countries have considered or are in the process of considering such laws.

These are some pretty significant changes in just a few short years. I believe that this really demonstrates how useful the mechanism of the specialized mandate on freedom of expression has been. 

Why has the mechanism of the Special Rapporteur been successful? I think this is due in part to a number of factors. 

First of all, some governments of the region have had the political will to address the issue of freedom of expression. And as I stated earlier, many of the Heads of State and Government have repeatedly emphasized the importance of freedom of expression for the consolidation of democracy and have committed themselves to support its activities.

When states are committed to the core value of freedom of expression, they will be more likely to cooperate and work with the specialized mandate to implement its recommendations.

Although governmental support for the mandate is essential, the mandate must also be independent from governmental pressure in evaluating the situation of freedom of expression in each country and presenting its conclusions.

The Inter-American Commission on Human Rights created the Office of the Special Rapporteur in exercise of its authorities and competence. 

The Commission itself is an independent body within the OAS, with seven Commissioners selected by the OAS General Assembly in their individual capacities rather than as representatives of countries. 

The Office of the Special Rapporteur operates within the juridical framework of the Commission and assists with many of the Commission’s functions in the area of freedom of expression. It also has functional independence to develop its own assessments of freedom of expression issues. 

This independence has allowed the Office to be more effective in addressing problems of freedom of expression in all of the countries in the region.

A third important factor for the success of the specialized mandate is a broad dialogue with members of civil society. Civil society organizations -- including the World Press Freedom Committee -- journalists and communications media constantly provide the Office with information and assessments of key problems and issues in freedom of expression, give feedback regarding the functioning of the Office and cooperate with the Office to educate the public about freedom of expression and mobilize for reform of legislation relating to freedom of expression.

One dramatic example of what happens when the public is mobilized was the case of the murder of Jose Luis Cabezas in my country, Argentina.

Cabezas was a photojournalist who was involved in investigating issues of corruption. While on assignment, he was kidnapped, shot, and his body was burned.  This grisly murder produced a public outcry in Argentina -- thousands of journalists, human rights defenders, political figures, and ordinary citizens marched through the streets of Buenos Aires days after Cabezas’ death, demanding accountability. 

Ultimately, many of the individuals responsible for his death were held accountable and Cabezas became a symbol for the struggle faced by journalists everywhere.

Before I conclude, I would like to reflect again on one of the most recurring issues affecting freedom of the press.  Someone once said, “The time, it is to be hoped, is gone by, when any defense would be necessary of the ‘liberty of the press’ as one of the securities against corrupt or tyrannical government.”

Actually, John Stuart Mill said this in 1858.

It is clear that almost 150 years later, we are still working to make the case for freedom of expression in many areas of the world, including in the Americas.

Fortunately, we are now defending freedom of expression in democracies instead of dictatorships in the Americas. 

We have made significant gains, but serious violations continue to occur in the region virtually every day. 

And we still have a long way to go if we are to avoid reliving the stories of those who have sacrificed everything for the right to inform society -- Jose Luis Cabezas, Domingos Sávio Brandão de Lima Júnior, Flavio Bedoya, and others like them.

We must continue to work together to consolidate the gains of the past four years. We must do everything we can to protect journalists and others from reprisals. 

We must educate governments and members of civil society about the fundamental importance of freedom of expression. 

And we must keep moving forward with legal reforms that will protect the right to freedom of expression.

Defending freedom of expression is about defending a way of life. It is about defending democracy. When freedom of expression vanishes or weakens, democracy will suffer the same fate. 

We all know the results of the death of democracy. We have seen in the past that when democracy dies, it often takes hundreds, even tens of thousands of lives with it.

The work we are doing at the Commission and the Office of the Special Rapporteur and the work that all of us gathered here today are involved in, in one way or another, is precisely about preserving democracy for the good of all members of society. 

It is about ensuring a better world where freedom of the press is not threatened daily and journalists like Domingos Sávio Brandão de Lima Júnior and Flavio Bedoya will arrive home safely at the end of each workday.

All of us here today are partners in this mission and your support of the Office of the Special Rapporteur has been vital in allowing it to carry out its role. 

Thank you.