David Kaye on Protecting Freedom of Expression, Opinion Around the World

Prof. Glater and Prof. Kaye recording podcast

Prof. Kaye, the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, explains how he and the UCI Law students in the International Justice Clinic work with governments across the world to monitor and protect freedom of expression and opinion.

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  • David Kaye

    Clinical Professor of Law, Director, International Justice Clinic, and UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression
    Expertise: Public international law, international humanitarian law, human rights, international criminal justice, the law governing use of force
  • Jonathan Glater (Host)

    Assistant Professor of Law
    Expertise: Higher education law, criminal law, corporate law, white collar crime and securities fraud

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks.

[Jonathan Glater] Welcome to UCI Law Talks today we're talking to David Kaye, Clinical Professor of Law and Director of the International Justice Clinic here at UCI. He's also the United Nations’ Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. David, welcome and thank you for joining us.

[David Kaye] Thanks for having me.

[JG] So let's start with this special rapporteur. What is that?

[DK] So the Human Rights Council, which is the central human rights body of the UN General Assembly, appoints about 50 experts to monitor particular areas of human rights law. And, there are working groups on things like arbitrary detention and mercenaries, things like that, and they're independent experts who are exploring new areas of law and then there are a few dozen that deal with thematic issues in human rights law, and then about a dozen who deal with country’s specific concerns. So, the Human Rights Council appoints all of these and I was appointed in June of 2014 and started August of last year.

[JG] What kind of power does that mean you have? A special rapporteur. It sounds impressive.

[DK] Yeah it may sound maybe a little more powerful than it is. I mean the kinds of things that we do are really working with governments to bring them to a place of compliance with human rights law. My specific areas obviously freedom of expression, freedom of opinion and we will hear from individuals around the world about violations and then we'll encourage states through direct, diplomatic communications; encourage them to comply with the law. Sometimes we'll do country visits and encourage them and sometimes we'll do thematic reports where we look at broad areas of law. You know, our ability to actually enforce the law is pretty limited. I'm not a judge, I'm not a magistrate, I don't have police powers. So there's sort of a power of persuasion, a power of convening in order to get maybe human rights groups and states to do the right thing but that's, in a way, the extent of it.

[JG] That is impressive though because that means that you are relying, I guess, on powers of almost moral suasion to bring national governments to comply, right?

[DK] Yeah I think that's right. I mean I think – well what we try to do, to give an example, I report to the Human Rights Council and to the General Assembly once each year. And you know in those presentations I can use that as an opportunity to call out some states’ bad behavior and I've done that. And sometimes, that in itself serves as a kind of moral support for activists on the ground who then use that as a form of their own advocacy, which they can then apply as a form of pressure against governments. Sometimes other governments will hear that and then they'll do their own thing and push a particular state to come toward compliance. I mean we do; we have these tools – they're limited – but part of the goal is really part of the effort is to try to figure out how do you get the most leverage out of them that you can.

[JG] So does this mean that there are laws you can actually cite to and try to encourage compliance or are we in kind of a softer more complex world when it comes to getting national governments to respect freedom of speech?

[DK] Yeah I mean it's a great question. So the foundation of the mandate, that the Human Rights Council, gave me is basically Article 19 – the same article in both the Universal Declaration of Human Rights, which is nonbinding, sort of an aspirational set of standards that to some extent has crystallized as customary international law in other words all states are bound by it. But there's also the International Covenant on Civil and Political Rights which we call the ICCPR, which also has Article 19 and it protects everyone's right to maintain an opinion without interference. It protects everyone's right to seek, receive, and impart information and ideas of all kinds through any media and regardless of frontiers. So we have a kind of basis of law that's both binding and potentially a little bit softer and we use that to affect. I mean not all states are party to the ICCPR. For example, the United States is but for example China is not and Saudi Arabia is not. So we have to you know work on using some of the softer tools with the softer foundations and hope that those provide a standard that we think we can encourage those states to achieve. But there's a broad understanding, I think broad consensus that the norms that underlie this mandate are actually the legal norms that are out there that should be applied by states.

[JG] You mention that you presented already to whom? And can you tell us a little bit about what was the content of the presentation that you made?

[DK] Yeah so I presented twice so far to the Human Rights Council last June and to the General Assembly's third committee, which is basically their human rights committee and that's kind of a committee of the whole at the General Assembly. The first presentation was a thematic report. It's a report of about 10,000 words, you know for those who are counting and care about those things. That's a report that went public; it's on the website of the office of the High Commissioner for Human Rights. It gets picked up by advocates around the world and I also presented orally, you know talking points not all 10,000 words to the council itself, which is about a little less than 50 states. But then, any number of states, any of the other 140 states out there that are members of the UN can also participate as well as members of civil society so non-governmental organizations. So I presented I mean the hardcopy, the report itself. You know my hope is that advocates pick it up; they use it in litigation, in advocacy, in all sorts of forms in order to really apply them which we’re looking at international law, apply those norms in a domestic context or depending on an in an international context. So that first report was on encryption and anonymity online – big, big issues for people who are trying to avoid surveillance. You know, particularly activists, journalists, all sorts of people who are just trying to have some zone of privacy for their freedom of expression. So we dealt with it in that context and you know my hope is that others pick it up. We got a lot of pushback from states, but I think advocates are very happy with it and I think it reflects existing international law more or less. So that was a first one. The last one, just last week, was a report on the protection of sources and whistleblowers and we could talk a little bit about that. A little bit more of a traditional legal report in the sense that both whistleblowers and sources are the subject of regulation internationally, both as a matter of international and domestic law. Whereas encryption and anonymity had more of a kind of normative development kind of feel to them.

[JG] How did those two subjects become the topics you were addressing? I mean do you have a supervisor who suggest to you that these are topics to look at are or how did you pick these or did you pick these?

[DK] Yeah I mean I'm independent. On the thematic reporting, I'm expected to independently identify areas of law that are either in need of say, better implementation, so we know what the law is but they're not implemented very well, which you might say is the case for sources for example. I mean the confidentiality of sources is kind of well understood as a principle of national law around the world, but it's not actually enforced very well in many cases. So we really just identify some problem out there in need of work on the implementation side. Or the other might be there is a problem of a normative gap, which I think encryption and anonymity really felt. There's a lot of gaps right now in terms of how existing law applies in a digital age. But nobody says you must do this, you must do that. I'm really expected as an independent operator, so to speak, I'm expected to identify issues that really deserve some treatment. In order to do that, I don't do it in a vacuum. I've, you know, organized meetings with civil society. We did meetings last year in New York and in London and in Geneva where we reach out to people, really real experts, to ask you know what are the issues that concern you most and we've reached out to governments as well. And through that process we learn well these are the areas where there is some need and there may be other areas too. I mean, there's other mechanisms to figure out what are the areas we should be looking at but that's – it's not – it is me doing this independently with students and with staff at the office of the High Commissioner for Human Rights. But it's my choice at the end of the day what subjects we adopt.

[JG] I want to ask about the students but first I want to ask about the reporting. So, it sounds like there's reporting that goes on to figure out which topics to address which issues rise to the level and with the demand for clarity. Having done that, you need to investigate, I assume, conditions in different countries. How do you gather that information?

[DK] It's a great question. So, we do a couple of things. So one is we communicate with governments as I mentioned right at the beginning and we communicate not just because – in fact specifically not only because of reports that we might see in in the media. We're expected to actually gather information about issues of concern in the area freedom of expression freedom of opinion. So, we do some of that as a kind of proactive thing which students and staff at OHCHR in Geneva do. But also we get hundreds of communications from around the world every year. People who reach out who say, you know, my sister is a journalist and she's been detained in this country or my husband is detained because he posted this on Facebook or whatever it might be. That's one way that we gather information; that's a little bit more passive. Actively, we do look at you know what are NGO’s reporting about. And the clinic is actually designed in part so that students can take on the role of identifying what are problems in different regions around the world and looking at specific cases and then seeking more information. That's kind of enforcement from afar. We can also do enforcement up close or I’d say monitoring, is probably a better word than enforcement. So I'm expected to do two to three country visits every year. And by expected I mean the human rights council expects that so I need to ask countries for permission to do an official visit. You might imagine freedom of expression is not an area where countries are banging on the door. It's often seen as extremely politicized or maybe socially sensitive for any number of reasons. So I haven't done a country visit yet, but we've just had a formal confirmation of dates for a visit to Japan, which we’ll be doing at the beginning of December. And we've had invitations just over the last month or so from Nigeria, Tajikistan, from Turkey, which is from several months ago and we’re working on identifying some dates, and working with Jordan also to identify something. So in those situations we’ll actually go to the country, we’ll meet with government officials, and we'll identify the kinds of subject matters that we’re interested in. We’ll meet with civil society, we’ll meet with academics, and we'll try over the course of seven to ten days to get a picture of practice in a particular area – you know law and practice – and then we'll do report afterwards that we report to the Human Rights Council.

[JG] Wow, that sounds like a fascinating travel.

[DK] Yeah.

[JG] You mentioned “we” so let me ask about the role of the students here. So there's a clinic here at the law school. Second and third year students take the clinic. What do they do?

[DK] They do everything that I do, in a way. Someone – one of the students this morning said that there were mini rapporteurs. It's, you know, it's kind of amazing really. And I think really great. It's exciting for me because I rely on super smart students who are really committed to doing this kind of work that's, you know, public interest work. That in a lot of respects is very similar to what human rights lawyers do when they're at big organizations like Human Rights Watch or Amnesty as well as grassroots organizations around the world. So they really support the work of the mandate. So as I said before, we've divided up the clinic so students have regional responsibilities and that's for the purpose of kind of day-in day-out monitoring what's happening around the world and then providing suggestions for communications and often drafting communications themselves. These are in a way like demand letters. Not quite because there are allegations or urgent appeals, and we're asking questions of governments and we're hoping to get into a dialogue with governments. But they're really you know little mini legal briefs that we, you know, submit directly to governments. Then we do projects and each student is on a project team. So to give an example or two, one of the big gaps I think for freedom of expression online right now is the responsibility of corporate actors. So you know when a country demands that Twitter delete tweets, what’s Twitter's responsibility? Or when Facebook, which has moved from having you know Terms of Service to community standards, when they take down a post, what are their standards? Do they have obligations as states do to apply human rights standards when they're dealing with what essentially looks like some form of censorship. That's just sort of one element. There's all sorts of issues around corporate responsibility in the Internet space. So right now we're trying to raise some money in order to do a kind of a two to three year project on this area and there's been some work. There's something called the Ruggie Principals. In the UN, Professor John Ruggie, who's now at the Kennedy School at Harvard, developed these principles on business and human rights. What are businesses responsibilities? And we’re essentially taking those and extending them to the Internet sector. Students are working on that right now. So there are four students, two of the students will come with me to Brazil in a couple of weeks to attend the Internet Governance Forum, which is, you know, one of these multi-stakeholder conferences where you have corporations, governments, civil society academics, UN officials, others really focusing on specific topics in international Internet governance. So a couple of students will come, they’ll work, report on that. They’ll participate in the meetings and then that will be part of developing this project. A couple of other students are working on a mapping project where we look at what are the corporate areas in the Internet space or in digital space more generally, where corporations have implications for freedom of opinion, freedom of expression. Looking at what are the legal principles that are out there, looking at what civil society has already done in terms of adopting principles. So they're doing that and that's a report that they'll help draft that then we'll present to the Human Rights Council in June. So when I say we, and it's easy to fall into the royal we, but I really mean that I have an amazing team. I have a clinical fellow, an adjunct professor, you know, we're working on this all together as a team and it's kind of exciting. For me, it's exciting to have students involved in it, for sure.

[JG] And I'm sure it's exciting for the students. So how does a student get involved in the clinic? Clinics are mandatory here at UCI, we should note. But if I'm a student, a 1L or 2L, and interested in this clinic, how do why how do I get in? Is there anything I have to do?

[DK] There's nothing particular that a student needs to do. My experience is that students who want to do this clinic, and I should say as you know, I mean the clinics here are fantastic. But if a student wants to do this particular clinic, my experience is there's no problem in just letting, you know, the assistant dean for clinical education know of a preference and really making that happen typically is not a problem. I mean there are things that a student can do before. We have we have international law in the first year so students are already, basically prepared for a clinic that is international law oriented. They can take human rights, a survey course that I teach most years; they can take other classes in international law to be prepared. But generally speaking, if a student wants to take it they can they can participate and there's two other ways they can participate. One is we've got a great pro bono project, generally speaking, I mean pro bono program at the law school, and one thing we're trying to do is because we have so much work is trying to engage students in the pro bono side. So that could be even, I think, starting their second semester of their first year that they can start to, you know, participate in these kinds of things. And then, at the on the other end, when you’re a third year, if you've already done the clinic you can do an advanced clinic. And I've had students do, you know, they've done a semester of the clinic and then they come and want to spend, you know, a full year afterwards working in more advanced events projects maybe even serving in any kind of management function and running a team that might be running a project. So, yeah, there's a possibility to do this really for two-and-a-half years out of three when you're a student here.

[JG] I'm sure the students will appreciate that experience. That's incredible. I want to ask you a little bit about where you get normative guidance. So we've talked a little bit about the investigation I guess, right, of conditions in different countries. But then, you've got to decide what's the correct resolution of the issue, and I wonder how you conclude that.

[DK] Yeah it's a great question and in international law, it's not like in national law research around the world where you have a kind of clear sense of statutory law maybe you know an overhang of constitutional norms and then you have jurisprudence that is binding on for future parties. International law operates, you know, really quite differently. Not all states are bound by the same treaty law because perhaps they haven't joined a treaty; not all states have the same kind of implementation. Some have made reservations to treaties. So it can be a little bit complicated. You know, in the space of freedom of expression, I think the first thing is there's a common set of norms that most states will agree apply in the context of freedom of expression. The main problem is that it's also understood, and this is true as a part of the ICCPR, the Covenant on Civil and Political Rights, that restrictions may be applied on freedom of expression in specific circumstances. Basically, where a restriction is necessary to achieve a legitimate government objective like national security. Most of the debate tends to be around the restrictions as, you know, one would expect. So what do we look for? You know, on a normative side, we look to practice to see how states have practiced over time. We look at the Human Rights Committee, which is the treaty monitoring body of the ICCPR and there's a number of cases coming out of that. We look to regional practice. So, Article 19 at the universal level, in the global level, is mirrored by the European Convention on Human Rights, the American Declaration on Human Rights, the African Convention on Human and People's Rights, and under those treaties, there's a whole lot of practice. There's the European Court of Human Rights, the Inter-American Court in American Commission on Human Rights, the African Commission on Human Rights, there's the East African Court of Justice. I could go on and on. There are regional and sub-regional bodies that actually apply these norms in very specific cases. So even though those aren't binding like a case coming out of the East African Court of Justice isn't binding, you know on somebody in Los Angeles or Irvine, we can find some common normative strains across regions. So we look at the international, we look at the regional, and then finally I would say – well we certainly look at national practice and national implementation of these norms. But the other is, you know, we often try to bring together experts and we – there's a kind of convening power of the rapporteurship, let's say. Where if I say we're doing a project on whistleblowers, I call a meeting. You know, people come; it's not like other experiences I've had where you’ve had to bang down the door to get people to come to a meeting. People are very excited to provide input. I guess the last thing I would say is when we do our projects, our thematic reports, we do calls for submissions, and so for example on the whistleblower report that we just did, we had almost 30 submissions from states saying this is our law this is, what we think the law means, and so forth. And about a dozen submissions from civil society organizations, you know, organizations like Article 19, which is a major NGO focusing on freedom of expression based in London or the Government Accountability Project, which is a whistleblower protection organization based in Washington. So we that's how we gather information and it's proved so far to be a really effective way to get a sense of what the law is in different states: what the norms are at the regional levels and what people think to the extent that there is room for normative say progressive development, where people think the law should be heading.

[JG] One aspect of the project seems to be for you getting the word out. So there's the website and you should tell people what the URL is and I understand you're contemplating a podcast of your own, so maybe you can tell us the URL and tell us a little that podcast.

[DK] Yeah. So okay. So the URL, it's freedex.org. So F-R-E-E-D-E-X, freedom of expression obviously. It's also if I can say https, so it's an encrypted connection. So this is a problem actually because the OHCHR website which is the office of the High Commissioner for Human Rights website is not encrypted. So if you're an activist anywhere in the world and you reach out to us through this website, your government – if your government's a repressive government – they can see who you're reaching out to. So, we were very careful and it was great working with Patty Furukawa here to make sure this happened, that we did that. So we've got the website, that's a good place for people to go just to see what we're doing. We're planning to start our own podcast. The idea is that students would work with me to identify activists around the world. You know, those who typically don't get a voice or those don't have their voice heard internationally, where we can talk with them and give them a platform in a way and talk about how freedom of expression can be a challenge in different societies. You know, both in the US in North America, in Europe and everywhere, so those are a couple of ways I think that we can try to get the word out. I go to conferences all the time. I'm on Twitter so that's another way to get the word out. And I do think that getting into the media through op-eds and so forth is really important. But I would say that in terms of our key contributions, they mostly come about when advocates use our thematic reporting or even use our communications to governments to extend their own advocacy. And that works – if governments think that our own work is credible and really is consistent with existing international law. So we do try to make sure that advocates around the world you know at national, regional, international levels know about the work that we're doing. We really need to put the work into their hands so that they can go. Say they're doing a litigation at the European Court of Human Rights, they can say, well, the rapporteur on freedom of expression has analyzed this problem and came to this conclusion and we think you should adopt court – this approach to this particular issue. To me, that's the biggest contribution we can make. That's the real impact because, you know, op-eds and tweets and so forth are ephemeral and we're looking for – and those can be helpful in getting the word out, but we're really looking for long term, you know, legal impact that, you know, helps move the law in a in a positive direction that’s sensitive to freedom of expression.

[JG] David, that was such a flawless wrap up that I'm just going to thank you so much for joining us. That was that was really inspiring. Thank you.

[DK] Thanks, Jonathan.

[Narrator] Thank you for joining us for UCI Law Talks produced by the University of California Irvine, School of Law.