North Korea’s obligation to ICCPR: Freedom of expression and the three-part test
North Korea has been a state party to the International Covenant on the Civil and Political Rights (ICCPR) since 1981. It made an attempt to withdraw from the ICCPR in 1997. However, according to the General Comment No 26 of the Human Rights Committee (a treaty-based mechanism), withdrawal or denunciation was not possible, because there was no express or implied provision in the ICCPR in that regard. That means North Korea as a state party continues to bear the legal obligations under the ICCPR. The question is: how much are the legislative measures of North Korea, particularly on the freedom of expression and information, in line with the ICCPR?
The ICCPR came into force in 1976, and most of the countries have, so far, become parties to this important human rights instrument. The Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the ICCPR are, together, known as the International Bill of Human Rights. The provisions of the ICCPR are so important that its drafters did not leave, expressly or impliedly, any room or scope for the state parties to denounce or withdraw from it.
I would briefly analyse the provisions of the ICCPR that focus on the freedom of expression and information and further examine how far the recently enacted laws of North Korea are in line with the provisions of the ICCPR.
Article 19 (2) of the ICCPR provides that "everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." It must be noted that these rights are not absolute. And it does mean the state can impose restrictions on these rights. Article 19 (3) is relevant, which provides that "the exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals."
In 2011, the Human Rights Committee interpreted Article 19 (3) through the General Comment No 34 (Paragraph 22) on the following words: "Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be 'provided by law'; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality. Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated."
In 2020, I had the opportunity to contribute, through inputs, to the preparation of a report (on academic freedom) of the UN special rapporteur on the right to freedom of opinion and expression. My submissions included, among others, the observance of the three-part test given under Article 19 (3) of the ICCPR against the restrictions that might be imposed by the states against freedom of expression. The report (A/75/261) was presented at the 75th session of the UN General Assembly. The report and my submissions are available on the webpage of the UN Office of the High Commissioner for Human Rights (OHCHR).
As a state party to the ICCPR, North Korea is under legal obligation to bring legislative measures that comply with the provisions of the ICCPR or to ensure that the domestic laws are in line with the provisions of the ICCPR. However, in December 2020, the North Korean government adopted a law against "reactionary thought," denying the freedom of expression and information and ignoring the spirit of Article 19 of the ICCPR.
According to the Daily NK, "Article 27 of the law calls for sentences of five to 15 years of correctional labour against people caught watching, listening or possessing 'films, recordings, publications, books, songs, drawings or photos from south Choson (South Korea),' and life sentences of correctional labour or death for individuals who import and distribute such materials." Article 32 of the law against reactionary thought calls for disciplinary labour or up to two years of correctional labour for "speaking or writing in the South Chosun style, singing songs in the South Korean style or printing materials using South Chosun fonts." The law also calls for fines of 100,000-200,000 Korean wons towards parents whose children fall afoul of the law's stipulations because, the law argues, the parents "failed to raise their children properly."
I would like to draw a conclusion examining the provisions of the law mentioned above and addressing the two following questions: Can it be said that those provisions are in line with the spirit of Article 19 (2) of the ICCPR? And can it further be said that the restrictions that have been imposed by this North Korean law against the freedom of expression and information are justified and/or qualified under the three-part test (Legal, legitimate, and necessary and proportionate) of Article 19 (3) of the ICCPR? I would answer these two questions with just a single word: no.
Barrister Muhammad Muzahidul Islam is a human rights activist and an advocate at the Supreme Court of Bangladesh.