CONCEPTUALIZATIONS OF ACCESS TO INFORMATION IN HUMAN RIGHTS LAW Cheryl Ann ...

277 Pages·2009·1.37 MB·English

INTERNATIONALIZING THE RIGHT TO KNOW:
CONCEPTUALIZATIONS OF ACCESS TO INFORMATION IN HUMAN RIGHTS LAW

Cheryl Ann Bishop

A dissertation submitted to the faculty of the University of North Carolina at Chapel Hill in
partial fulfillment of the requirements for the degree of Doctor of Philosophy in the School of
Journalism and Mass Communication.

Chapel Hill
2009

Approved by
Advisor: Cathy Packer, Ph.D.
Reader: Lucila Vargas, Ph.D.
Reader: Ruth Walden, Ph.D.
Reader: Bereket Selassie, LL.B, Ph.D.
Reader: Mark Weisburd, J.D.
© 2009
Cheryl Ann Bishop
ALL RIGHTS RESERVED
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ABSTRACT

CHERYL BISHOP: Internationalizing the Right to Know: Conceptualizations of Access to
Information in Human Rights Law
(Under the direction of Cathy Packer, Pd.D.)

Currently there exists a global movement promoting institutional transparency and
freedom of information legislation. Conceptualizing access to government-held information
as a human right is one of the latest developments in this global trend promoting access to
information. The purpose of this dissertation is to identify and analyze the various
conceptualizations being used to promote access to government information as a human
right. This dissertation also assesses the strength and weaknesses of each conceptualization
and assesses which conceptualization holds the greatest promise for ensuring the broadest
right of access to information.
Conceptualizations were identified by examining international human rights law
(particularly human rights treaties), normative arguments of international inter-governmental
organizations (particularly the United Nations), and nongovernmental organizations. Four
conceptualizations were identified: the freedom-of-expression conceptualization, which
bases a right to information on the right to freedom of expression; the information-privacy
conceptualization, which bases a right to information on the right to privacy; the right-to-a-
healthy environment conceptualization, which links information rights to a right to a healthy
environment; and the right-to-truth conceptualization, which bases a right to information on
individual and societal rights to know about serious human rights abuses.

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To
My mother Kathleen Mary Bishop
whose love, support, and acumen nourish my soul and feed my intellect.
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ACKNOWLEDGMENTS
Writing this dissertation often felt like a solitary process, but in fact it was a group
effort. Without the expertise and support of numerous intelligent, kind, and downright fun
folks, I could not have completed this project.
First and foremost, I would like to thank my mom, who generously spent her time,
money, and energy traveling across the country to be with me. I would also like to thank her
for imparting her unabated intellectual curiosity. I am blessed to have her as my mother.
I am also indebted to my dissertation committee chair, Cathy Packer, Ph.D., who
encouraged my interest in human rights law from the very beginning. She skillfully guided
me through this demanding process with humor and expertise. She has been a mentor, a
cheerleader, and a friend.
I would also like to express my sincerest gratitude to the members of my dissertation
committee: Dr. Ruth Walden, Dr. Lucila Vargas, Professor Mark Weisburd, and Dr. Bereket
Selassie. Each member provided me with their time, expertise, and encouragement. It was
an honor to have such accomplished and intelligent scholars on my committee.
Finally, I would like to thank my colleague Derigan Silver, whose engaging
intellectual banter gave me focus, respite, and entertainment. Law dawgs unite!
I am forever grateful to you all.
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TABLE OF CONTENTS

Chapter Page
I ACCESS TO INFORMATION AS A HUMAN RIGHT ……………………..… 1
An Introduction to International Human Rights Law …………………………... 8
The History of Human Rights Law …………………………………...… 8
Sources of Human Rights Law…………………………………………... 12
The Role of Nongovernmental Organizations …………………………………... 14
Access to Information as a Human Right: A Review of the Literature …………. 17
Conceptualization Access ………………………………………….......... 18
Freedom-of-Expression Conceptualization ……………………………... 20
Right-to-Health Conceptualization ……………………………………… 30
Right-to-a-Healthy-Environment Conceptualization ……………............ 32
Information-Privacy Conceptualization ……………………………........ 35
Conclusion …………………………………………………………......... 37
Research Questions ……………………………………………………………… 38
Method ………………………………………………………………………….. 39
Study Limitations ……………………………………………………………….. 41
II THE FREEDOM-OF-EXPRESSION CONCEPTUALIZATION …………….... 43
Rationales of the Right ………………………………………………….. 44
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The “Seek and Receive” Rationale ……………………………… 45
The Self-Governance Rationale …………………………………. 60
The Good-Governance Rationale ……………………………….. 69
To Whom the Right is Conferred ……………………………………….. 72
The Type of Information Guaranteed …………………..………………. 80
The Principle of Maximum Disclosure………...………............... 81
The Proactive Requirement ………………………………….….. 85
Limitations on the Right …………………………..……………….……. 86
Procedural Obligations …………………………………….......... 87
Legitimate Limitations and the Public Interest ………………….. 90
National Security Limitations……………………………………. 95
Conclusion ………………………………………………………………. 98
III THE INFORMATION-PRIVACY CONCEPTUALIZATION …...................... 101
Sources of the Right to Personal Information…………………………… 102
Rationales of the Right ………………………………………………….. 107
The Knowledge-about-Self Rationale …………………………... 108
The Governmental-Accountability Rationale……………………. 111
To Whom the Right is Conferred …………………….............................. 114
The Type of Information Guaranteed ……..…………............................. 115
Limitations on the Right ……………………..………………………….. 118
Conclusion ………………………………………………………………. 127
IV THE RIGHT-TO-A-HEALTHY ENVIRONMENT
CONCEPTUALIZATION …………………………………………………….… 129

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The Right to a Healthy Environment …………………………………..…. 130

Rationales of the Right …………………………………………..……….. 135

Protecting-Rights Rationale …………………………................................. 136

Public-Participation Rationale …………………………………... 138

To Whom the Right is Conferred………………………………………... 146

The Type of Information Guaranteed …………………………………… 149

Proactive Requirement ………………………………............….. 151

Private Sector Information ………………………………………. 154

Limitations on the Right ………………………………………………… 155

Conclusion …………………………………………………………….… 158

V THE RIGHT-TO-TRUTH CONCEPTUALIZATION ………………………… 162

Defining the Right to Truth ……………………………………………... 163

Rationales of the Right ………………………………………………….. 171

Human-Rights-Violations-through-Nondisclosure Rationale …... 171

Information-as-Reparation-for-Human-Rights-Violations
Rationale ………………………………………………………… 178

Prevention-of-Human-Rights-Violations Rationale …………….. 182

To Whom the Right is Conferred ……………………………………….. 186

The Individual Dimension ………………………………………. 187

The Societal Dimension …………………………………………. 188

The Type of Information Guaranteed …………………………………… 192

Limitations on the Right ………………………………………………… 196

Conclusion ………………………………………………………………. 202

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VI EVALUATING AND COMPARING THE CONCEPTUALIZATIONS ……… 206

Four Conceptualizations of Access to Information as a Human Right …. 206

The Freedom-of-expression Conceptualization …………………........…. 207
The Information Privacy Conceptualization …………….………. 212
The Right-to-a-Healthy Environment …………………………… 215
The Right-to-Truth Conceptualization …………………..……… 218

Strengths and Weaknesses of the Four Conceptualizations …………….. 222

Freedom-of-Expression Conceptualization:
Strengths and Weaknesses …………………………………......... 222

Information-Privacy Conceptualization:
Strengths and Weaknesses ………………………………….......... 227

The Right-to-a-Healthy Environment Conceptualization:
Strengths and Weaknesses ………………………………………... 230

The Right-to-Truth Conceptualization:
Strengths and Weaknesses …………………………………........... 233

Which Conceptualization Has the Broadest Reach? ………………........... 236

Directions for Further Study ……………………………………………… 241

APPENDIX …………………………………………………………………………….. 243

REFERENCES ………………………………………………………………………… 247

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CHAPTER I
ACCESS TO INFORMATION AS A HUMAN RIGHT

In the first opinion of its kind from an international human rights tribunal, the Inter-
American Court on Human Rights1 ruled that access to government information is a human
right. The September 2006 ruling stated: “[T]he right to freedom of thought and expression
includes the protection of the right of access to State-held information.”2 The case began in
1998 when the Chilean government refused to release information regarding a major U.S.
logging project in Chile to a Chilean environmental organization.3 A number of South
American human rights groups filed a petition with the Inter-American Commission on
Human Rights4 claiming that the withholding of information violated Chileans’ human

1 The Inter-American Court is an organ of the American Convention on Human Rights. It consists of seven
judges and hears individual and state complaints against state parties to the convention. The court can settle
controversies about the interpretation and applications of the Convention, and give opinions regarding
compatibility of state law and the Convention provisions. Under its advisory jurisdiction, it interprets the
provisions of the American Convention and other human rights treaties within the Inter-American system.
American Convention on Human Rights, Nov. 22, 1969, chap. 8, 1144 UNT.S. 123 [hereinafter American
Convention]. See generally IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 544-55 (6th ed. 2003).

2 Claude Reyes et al. v. Chile, Inter-Am. Ct. H. R. (ser. C) No. 151, ¶ 77 (Sept. 19, 2006); see also Open Society
Justice Initiative, International Tribunal Makes Landmark Ruling on Access to Information (Oct. 12, 2006),
http://www.justiceinitiative.org/db/resource2?res_id=103448.

3 The requested information was about the Río Cóndor Project, an extensive timber logging operation by U.S.
company Forestal Trillium on the Island of Tierra del Fuego in Chile.

4 In 1959 the Inter-American Commission on Human Rights was established as an independent organ of the
Organization of American States, and it held its first session one year later. In 1969 the American Convention on
Human Rights was adopted. The convention further defined the role of the commission and created the Inter-
American Court of Human Rights. According to the convention, once the commission determines a case is
admissible and meritorious, the commission will make recommendations and, in some cases, present the case to
the Inter-American Court for adjudication. The Inter-American Court hears these cases, determines liability