RIGHT TO INFORMATION IN INTERNATIONAL ORGANIZATIONS

Transcription

1 RIGHT TO INFORMATION IN INTERNATIONAL ORGANIZATIONS Nepomuceno A. Malaluan Co-Director, Institute for Freedom of Information Presented at Panel on Building Community through Information Access Strategizing Towards an ASEAN Protocol on Freedom of Information Regional Strategy Meeting on Emerging Social and Cultural Issues in Southeast Asia Kuala Lumpur, Malaysia19-20 September 2010 A partnership program of Action for Economic Reforms and Philippine Center for Investigative Journalism

2 The presentation will try to: I. Provide arguments in support of application of the right to information to international organizations II. III. IV. Provide some examples of right to information rules/policies in select international organizations Introduce emerging standards for a right to information rule or policy in international organizations Share thoughts on the idea of advocating for an FOI rule or policy for ASEAN.

3 I. Basis for claiming a public right to information in international organizations:

4 1. Public advocacy a. Accountability b. Participation c. Voice and Expression d. Community rights prior and informed consent e. Accessing services, programs, entitlements, redress mechanisms f. Better policies

5 2. Legal Basis International organizations have international personality and as such are subject of international law. Being subject of international law is not only about possessing rights, it is also about being bound by obligations under international law.

6 Among such obligations are universally recognized human rights. The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) codify international custom or general principles of law binding even upon non-state parties.

7 From the UDHR preamble : The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and INTERNATIONAL, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

8 Right to Information recognized in the UDHR and ICCPR Article 19 of the UDHR states: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 19 (2) of the ICCPR states: 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.

9 In the fifth report by the UN Commission on Human Rights Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Abid Hussain (India) stated that the right to seek and receive the right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its own.

10 Confirmation of right to information by practice and binding instruments At state level more than 80 countries have adopted access to information legislation

11 At International Level Inter-American Commission on Human Rights approved the Inter-American Declaration of Principles of Freedom of Expression in October Principle 4 reads: Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies. Inter-American Court of Human Rights, in the case of Marcel Claude Reyes et al. vs. Chile decided in in September 2006, held that the general guarantee of freedom of expression provided in Article 13 of the American Convention on Human Rights protects the right of all individuals to request access to State-held information, with the exceptions permitted by the restrictions established in the Convention.

12 - Committee of Ministers of the Council of Europe in 1981 adopted Recommendation No. R(81)19 which stated in part that (E)veryone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities - In the Charter of Fundamental Rights of the European Union, Article 42 states that (A)ny citizen of the Union, and any natural or legal person residing or having its registered office in a member state, has a right of access to European Parliament, Council and Commission documents. - In the Declaration of Principles on Freedom of Expression in Africa adopted by the African Commission on Human and Peoples Rights in October 2002, Part IV (1) provides: Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law. - Various international instruments with access to information provisions on specific areas such as environment, human rights, and corruption.

13 II. Examples of right to information rules or policies in select international organizations 1. Disclosure policies in international financial institutions ADB Public Communications Policy World Bank Policy on Access to Information Inter-American Development Bank Access to Information Policy International Finance Corporation Policy on Disclosure of Information

14 2. UNDP s Information Disclosure Policy first approved on 10 January 1997, with subsequent revisions thereafter. 3. Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.

15 III. Standards for a right to information rule or policy in international organizations The Global Transparency Initiative, an international network of organizations working on the right to information in international financial institutions, has developed a Transparency Charter for International Financial Institutions. This charter enumerates standards, drawn from best practices adopted by democratic states, to which GTI believes the access to information policies of international financial institutions or IFI s must conform.

16 Adapting the GTI IFI Charter Principles to International Organizations: Principle 1: The Right of Access The right to access information is a fundamental human right which applies to, among other things, information held by international bodies, regardless of who produced the document and whether the information relates to a public or private actor. Principle 2: Automatic Disclosure International bodies should automatically disclose and broadly disseminate, for free, a wide range of information about their structures, finances, policies and procedures, decision-making processes, and work. Principle 3: Access to Decision-Making International bodies should disseminate information which facilitates informed participation in decision-making in a timely fashion, including draft documents, and in a manner that ensures that those affected and interested stakeholders can effectively access and understand it; they should also establish a presumption of public access to key meetings.

17 Principle 4: The Right to Request Information Everyone has the right to request and to receive information from international bodies subject only to a limited regime of exceptions, and the procedures for processing such requests should be simple, quick and free or low-cost. Principle 5: Limited Exceptions The regime of exceptions should be based on the principle that access to information may be refused only where the international body can demonstrate (i) that disclosure would cause serious harm to one of a set of clearly and narrowly defined, and broadly accepted, interests, which are specifically listed; and (ii) that the harm to this interest outweighs the public interest in disclosure. Principle 6: Appeals Anyone who believes that an international body has failed to respect its access to information policy, including through a refusal to provide information in response to a request, has the right to have the matter reviewed by an independent and authoritative body.

18 Principle 7: Whistleblower Protection Whistleblowers individuals who in good faith disclose information revealing a concern about wrongdoing, corruption or other malpractices should expressly be protected from any sanction, reprisal, or professional or personal detriment, as a result of having made that disclosure. Principle 8: Promotion of Freedom of Information International financial institutions should devote adequate resources and energy to ensuring effective implementation of their access to information policies, and to building a culture of openness. Principle 9: Regular Review Access to information policies should be subject to regular review to take into account changes in the nature of information held, and to implement best practice disclosure rules and approaches.

19 IV. Initial thoughts on the idea of advocating for an FOI rule or policy for ASEAN. While anticipating the difficulty of acceptance among ASEAN member states of a very open ASEAN information disclosure policy or rule, this should not stop the ASEAN people from claiming the right. But there is a need to build understanding of differing statecitizens relations/perspectives among ASEAN countries. Provides opportunities for building regional FOI movement (involving public interest organizations, legislators, and other actors) mutually reinforcing national and regional FOI campaigns. Need to build resonance of regional work with national groups. If we are to advocate on FOI in ASEAN, it would be best to go directly into pushing for a comprehensive operational rule/policy, instead of confining to principles/recognition of the right. Developing a proposed FOI rule/policy for ASEAN requires studying carefully what instrument is most appropriate, which bodies should approve such rule/policy, its coverage in terms of institutions and information, what types of information are produced by ASEAN that are of high public interest, and the mechanism for their automatic disclosure, procedure for access, scope of availability of the right of request, and so on.