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Copyright (c) 2006 The University of Chicago
Chicago Journal of International Law

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

Summer, 2006

7 Chi. J. Int'l L. 351


Ambika Kumar *



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 ...
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