STATE SECRETS: CHINA'S LEGAL LABYRINTH - HRIC

6 HUMAN RIGHTS IN CHINA STATE SECRETS: CHINA’S LEGAL LABYRINTH
While the rights to freedom of expression and information can be legitimately
restricted, these restrictions must be narrowly tailored and specific in order to prevent
abuse. Restrictions on information are permissible, but they must be provided
by law and serve one of the enumerated purposes in the International Covenant on
Civil and Political Rights (ICCPR), including the protection of national security, to
respect the rights or reputations of others, or for the protection of public order
(ordre public), public health or morals. 10 Freedom of expression can only be
restricted in the most serious cases of a direct political or military threat to the
entire nation 11 —and as a result, peaceful expression is always protected. 12 Even
where a purpose is legitimately invoked, any restrictions must be proportional and
necessary, and must be the least restrictive means of achieving that purpose. 13
International law and norms also specifically address the issue of State classification
of information, and the criminalization of leaking such information. The
need to protect national security while balancing the need to protect human rights
is a problematic issue for nation states around the globe. While not a legally binding
treaty, “The Johannesburg Principles on National Security, Freedom of Expression
and Access to Information” (hereinafter, Johannesburg Principles) have
become a widely accepted norm and are arguably considered customary international
law. In addition to the proportionality and narrowly tailored requirements
for such restrictions—including on information relating to national security 14 —
the Johannesburg Principles dictate that “no person may be punished on national
security grounds for disclosure of information if:
the disclosure does not actually harm and is not likely to harm a legitimate
national security interest, or
the public interest in knowing the information outweighs the harm from
disclosure.” 15
If information has already been made generally available—by means lawful or
unlawful—the public’s right to know overrides any invoked justification for stopping
further publication of the information. 16 In the classification of information,
the State must adopt a means for independent review of the denial of access to
information on national security grounds to ensure that the purpose is not abused
by authorities. Finally, international law requires an actual finding of objective
harm before an individual can be imprisoned for leaking classified information. 17