A/HRC/42/CRP.5
impart information and ideas regardless of frontiers.1070 The right to freedom of opinion and
expression is enshrined in the 1948 Universal Declaration of Human Rights (UDHR),
whose adoption Myanmar (then called Burma) supported in the General Assembly. The
UDHR is considered a “common standard of achievement for all peoples and all
nations”1071 and it sets out the fundamental human rights that are to be universally
protected. Although the UDHR was not intended at the time to be a legally binding
document, it is generally considered as an authoritative interpretation of the human rights
provisions in the legally binding United Nations Charter and reflective of international
customary law.1072 This means that Myanmar is bound by the norms declared in its
provisions, including the right to freedom of opinion and expression, regardless of
Myanmar’s refusal to ratify other treaties, such as the ICCPR, that codify a similar right to
freedom of expression.1073
465. The scope of the right to freedom of opinion and expression under customary
international law is not clear. The Mission is guided by the consistent and rich case law on
this issue under Article 19 of the ICCPR. It takes the view that Myanmar must, at a
minimum, not actively deprive people of their right to freedom of opinion and expression,
or restruict the right, in a widespread and systematic manner unless any restriction is
provided by law, necessary for the protection of national security or of public order (ordre
public), or of public health or morals, and proportionate to the need to be served.1074 Under
the ICCPR, States may also derogate from their Article 19 obligations in exceptional
circumstances when a situation amounts to a public emergency which threatens the life of
the nation, in which case the State must have officially proclaimed a state of emergency.1075
Restrictive measures must also be limited to the extent strictly required by the exigencies of
the situation. The United Nations Human Rights Committee has explained that this
requirement relates to the “duration, geographical coverage and material scope of the state
of emergency and any measures of derogation resorted to because of the emergency”. 1076
Additionally, derogations must be proportionate and limited to what is strictly required by
the exigencies of the situation.1077
466. Given its global importance and ability to allow people to seek, receive and impact
information, permissible restrictions may include restrictions on incitement to violence and
to discrimination and on hateful speech. The Mission documented these kinds of
impermissible content against Rohingya in its 2018 report. That report documented the
extensive roles that Facebook and other social media platforms played in distributing such
speech, including through language, cartoons, memes or graphic content that fueled social
attitudes, intolerance and violence against Rohingya.1078 This report repeats its calls the
Mission made in its 2018 report to the Government of Myanmar, including the civilian
authorities and the Tatmadaw as relevant, to take immediate credible action to combat hate
speech, in particular where it amounts to advocacy of national, racial or religious hatred
that constitutes incitement to discrimination, hostility or violence.1079 This report also
repeats the calls made to Facebook and other social media to enhance their capacity to
1070
1071
1072
1073
1074
1075
1076
1077
1078
1079
130
UDHR, art. 19.
UDHR, Preamble.
See O. De Schutter, International Human Rights Law, 2nd ed. (Cambridge, Cambridge University
Press, 2014), p. 63 (and references listed there).
Myanmar has ratified the Convention on the Rights of the Child which provides in its Article 13 for
the right of children to freedom of expression in almost identical terms to Article 19 of the ICCPR.
ICCPR, art. 19(3).
ICCPR, art. 4; see, also, United Nations Human Rights Committee, General Comment No. 29 to
Article 4: Derogations during a State of Emergency, CCPR/C/21/Rev.1/Add.11, 31 August 2001,
para. 2.
ICCPR, art. 4; see, also, United Nations Human Rights Committee, General Comment No. 29 to
Article 4: Derogations during a State of Emergency, CCPR/C/21/Rev.1/Add.11, 31 August 2001,
para. 4.
Ibid.
A/HRC/39/CRP.2, paras. 1312-1360, in particular 1342-1354.
A/HRC/39/CRP.2, para. 1686.
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