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Global Principles on National Security and the Right to Information

Global Principles on National Security and the Right to Information

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Published by Silendo
Global Principles on National Security and the Right to Information (Tshwane Principles)
Global Principles on National Security and the Right to Information (Tshwane Principles)

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Published by: Silendo on Jun 24, 2013
Copyright:Attribution Non-commercial


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finalized in Tshwane, South Africaissued on 12 June 2013
These Principles were developed in order to provide guidance to those engaged indrafting, revising, or implementing laws or provisions relating to the state
’s authority to
withhold information on national security grounds or to punish the disclosure of suchinformation.They are based on international (including regional) and national law, standards, goodpractices, and the writings of experts.They address national security
rather than all grounds for withholding information. Allother public grounds for restricting access should at least meet these standards.These Principles were drafted by 22 organizations and academic centres (listed in theAnnex) in consultation with more than 500 experts from more than 70 countries at 14meetings held around the world, facilitated by the Open Society Justice Initiative, and inconsultation with the four special rapporteurs on freedom of expression and/or mediafreedom and the special rapporteur on counter-terrorism and human rights:
the United Nations (UN) Special Rapporteur on Freedom of Opinion andExpression,
the UN Special Rapporteur on Counter-Terrorism and Human Rights,
the African Commission on Human and Peoples’ Rights
(ACHPR) SpecialRapporteur on Freedom of Expression and Access to Information,
the Organization of American States (OAS) Special Rapporteur on Freedom of Expression, and
the Organization for Security and Co-operation in Europe (OSCE) Representativeon Freedom of the Media.
security and the public’s right to know are often viewed as pulling in oppositedirections. While there is at times a tension between a government’s desire to keepinformation secret on national security grounds and the public’s right to information
held by public authorities, a clear-eyed review of recent history suggests that legitimatenational security interests are, in practice, best protected when the public is wellinformed about 
the state’s
activities, including those undertaken to protect nationalsecurity.
Access to information, by enabling public scrutiny of state action, not only safeguardsagainst abuse by public officials but also permits the public to play a role in determiningthe policies of the state and thereby forms a crucial component of genuine nationalsecurity, democratic participation, and sound policy formulation. In order to protect thefull exercise of human rights, in certain circumstances it may be necessary to keepinformation secret to protect legitimate national security interests.Striking the right balance is made all the more challenging by the fact that courts inmany countries demonstrate the least independence and greatest deference to theclaims of government when national security is invoked. This deference is reinforced byprovisions in the security laws of many countries that trigger exceptions to the right toinformation as well as to ordinary rules of evidence and rights of the accused upon aminimal showing, or even the mere assertion by the government, of a national securityrisk. A government's over-invocation of national security concerns can seriouslyundermine the main institutional safeguards against government abuse: independenceof the courts, the rule of law, legislative oversight, media freedom, and opengovernment.These Principles respond to the above-described longstanding challenges as well as tothe fact that, in recent years, a significant number of states around the world haveembarked on adopting or revising classification regimes and related laws. This trend inturn has been sparked by several developments. Perhaps most significant has been therapid adoption of access to information laws since the fall of the Berlin Wall, with theresult that, as of the date that these Principles were issued, more than 5.2 billion peoplein 95 countries around the world enjoy the right of access to information
at least inlaw, if not in practice. People in these countries are
often for the first time
grapplingwith the question of whether and under what circumstances information may be kept secret. Other developments contributing to an increase in proposed secrecy legislationhave been government responses to terrorism or the threat of terrorism, and an interest in having secrecy regulated by law in the context of democratic transitions.
finalized in Tshwane, South Africaissued on 12 June 2013
The organizations and individuals involved in drafting the present Principles:
that access to information held by the state is a right of every person, and therefore that this right should be protected by laws drafted with precision, and with narrowly drawnexceptions, and for oversight of the right by independent courts, parliamentary oversight bodies,and other independent institutions;
that states can have a legitimate interest in withholding certain information,including on grounds of national security, and emphasizing that striking the appropriate balancebetween the disclosure and withholding of information is vital to a democratic society andessential for its security, progress, development, and welfare, and the full enjoyment of humanrights and fundamental freedoms;
that it is imperative, if people are to be able to monitor the conduct of their government and to participate fully in a democratic society, that they have access to information held by publicauthorities, including information that relates to national security;
that these Principles are based on international law and standards relating to the public’s
right of access to information held by public authorities and other human rights, evolving statepractice (as reflected,
inter alia
, in judgments of international and national courts and tribunals),the general principles of law recognized by the community of nations, and the writings of experts;

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