Using Courts to Enforce the Free Speech Provisions of the International Covenant on Civil and Political Rights

I. INTRODUCTION According to the International Covenant on Civil and Political Rights ("ICCPR" or "Covenant"), "[e]veryone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression."1 Over 150 countries have ratified this agreement, but dozens have neither signed, ratified nor enforced it.2 In some of these countries, there are few strong free speech advocates. In others, free speech lobbies have failed for a variety of reasons-government officials may believe they already allow important speech to exist without punishment, struggle to draft or implement legislation given the ambiguous contours of free speech, or face strong anti-speech groups. In light of these conditions, I suggest that advocates for liberal free speech rules, as laid out in Article 19 of the ICCPR, should look to their courts for solutions. Foremost, courts may be uniquely positioned to enforce the ICCPR by relying on its language and reading an inherent right to political speech into the constitutions of their respective governments. In addition, judges, who in many countries receive life tenure and guaranteed salaries, do not face the same political pressure as legislators. Finally, courts have traditionally been instrumental in guaranteeing individual freedoms that might be politically contentious or amorphously defined. Thus, using courts to regulate Article 19 rights serves both strategic and normative goals: judges are more likely to recognize free speech rights by relying on international law, and they are better fit to do so. More specifically, I suggest that one country's growing experience with the enforcement of political speech guarantees-Australia's-serves as a useful case study to support these propositions. Free speech lobbies in Australia have failed. Instead, the nation's highest court, in accordance with international law, has recently recognized an implied right to political communication in its constitution, which itself contains no explicit individual guarantees. In doing so, albeit somewhat unintentionally, the High Court of Australia ("High Court") single-handedly brought Australia within the realm of ICCPR Article 19 compliance. With some qualifications, other nations can learn an important lesson from the Australian free speech experience, specifically as articulated by Justice Michael Kirby: courts may be particularly well suited to apply and enforce the ICCPR's core protections of speech. Part II reviews international free speech obligations under the ICCPR and countries' efforts to comply with them. Part III describes and analyzes Australia's struggle with judicial enforcement. Part IV argues that, as evidenced by this struggle, courts are particularly suited to enforce the free speech provisions of the ICCPR. II. INTERNATIONAL FREE SPEECH NORMS A. THE ICCPR: HISTORY AND APPLICATION Pursuant to a mandate in the UN Charter, the UN Economic and Social Council created the Commission on Human Rights ("Commission") in 1946.3 As its first task, the Commission created the Universal Declaration of Human Rights ("UDHR"), a document containing principles that many scholars now consider customary international law.4 However, the UDHR does not contain any enforcement or interpretive mechanisms, and it is not sufficiently specific to bind nations. Thus, the Commission created the ICCPR, a comprehensive accord embodying in more detail many rights enumerated in the UDHR.5 The ICCPR took effect ten years following its 1966 adoption,6 after the requisite number of nations ratified it.7 Under Article 19 of the ICCPR, individuals have the rights to hold and express opinions of all kinds.8 A more restrictive proposal at the time would have limited the freedoms to "political liberty" and contained more exceptions allowing the suspension of speech rights.9 To presently qualify as an exception, the restriction must be established by law and necessary to serve a listed purpose-either "the respect of the rights or reputations of others" or "the protection of national security or of public order. …