Make Journalists Afraid Again?

As it already attempted towards the end of its first term in 2020, the Trump administration is currently planning to radically restrict the visas granted to foreign journalists. Under a new rule, so-called I visas would be limited to 90 days for Chinese nationals and to 240 days for other foreigners, instead of five years as is the case under the current regulation. This change is part of a broader crackdown on (even legal) immigration in general, as well as on free speech and the media system, and has been criticized as coming straight from the authoritarian playbook. Therefore, the new rules for foreign correspondents are worth a closer look. They not only pose a threat to freedom of the press in the United States and are thus concerning from an international human rights law perspective, but might very well have consequences for correspondents working around the world, inter alia due to the principle of reciprocity in international visa regulations.

International Law: “No one’s Entitled to a Visa.”

(Not) granting a foreigner access to one’s territory is a decision that, as a concomitant of sovereignty, is incumbent upon every state not bound otherwise by international law (as e.g., in the Schengen area). States are generally free to regulate the entry and exit of foreigners as long as they do not discriminate on grounds such as race, sex, language, or religion (see here, pp. 7 et seq.) or as US Secretary of State Marco Rubio put it: “No one’s entitled to a visa.” And yet, using this visa power as a tool to quash critical press coverage, as is alleged in light of the new regulations for foreign journalists, is highly problematic from an international human rights law perspective. Besides the critique that being allowed to remain in a country for a longer period of time only allows foreign journalists to report clearly and accurately in the first place, with visas for correspondents having to be renewed every few months there is profound concern that US decisionmakers will use this framework as a system of “editorial censorship in which the Trump administration can trade access for compliance in reporting.” The chilling effect on international news coverage resulting from a practice where correspondents loyal to the administration are rewarded with renewed visas while critics are forced to leave the country, is strikingly obvious. And, in light of recent developments, it takes little imagination to assume that this is exactly how the chips will fall.

Unfortunately, the new US administration has already amply demonstrated its willingness to use the visa system to exert political influence and get rid of intrepid voices, for instance in the cases of researchers speaking out against Israel’s violations of international law in Gaza. In recent weeks, after the assassination of Christian nationalist influencer Charlie Kirk, the focus has shifted elsewhere. Only the day after Kirk was murdered, US Deputy Secretary of State Christopher Landau made clear that foreigners who “glorify” the assassination online could not expect to be granted a US visa. In this context, also the head of German public broadcaster ZDF’s Washington D.C. studio, Elmar Theveßen, was targeted by a member of the administration. After Theveßen had made the mistake of declaring on a German talk show that Charlie Kirk had advocated stoning homosexuals (when in fact he had “only” used a corresponding Bible verse to imply that homosexuality is against God’s will) and that US Deputy Chief of Staff Stephen Miller had beliefs “somewhat reminiscent of the ideology of the Third Reich”, former US ambassador to Germany and current Special Presidential Envoy for Special Missions of the United States Richard Grenell demanded that “radical Lefty” Theveßen’s visa should be revoked. An incident that was met with regrettably little protest by the German government. And indeed, very recently the US State Department announced that it had suspended the visas of several foreign citizens, among them a German national, for allegedly having “celebrated” the murder of Charlie Kirk.

In just another example of how the Trump administration is eager to block out reporters asking critical questions, President Trump tried to humiliate John Lyons of the Australian Broadcasting Company (ABC) (“You are hurting Australia very much right now!”) after the reporter had dared to ask how much wealthier Trump has become since returning to the White House in January. Coincidentally, ABC was subsequently uninvited from a joint news conference with Trump and UK Prime Minister Keir Starmer “for logistical reasons”.

These are just a few examples of which there would be several more. But they underline the fact that the Trump administration seems unwilling to tolerate critical journalism despite clear demands to the contrary by international human rights law, in particular Article 19 ICCPR. As explained by the Human Rights Committee in its General Comment No. 34, “penalization of a media outlet, publishers or journalists solely for being critical of the government or the political social system espoused by the government can never be considered to be a necessary restriction of freedom of expression” (para. 42). After all, the free press is “one of the cornerstones of democratic society” (para. 13). Eroding press freedom, on the other hand, “is a warning sign (…) that signals a broader slide toward authoritarian practices”. Against this backdrop, the potential, and somewhat predictable, entanglement between the content of correspondents’ reporting and the approval of their visas is all the more concerning.

The Principle of Reciprocity – A Downward Spiral to Be Expected?

However, the new rules are not only concerning for freedom of the press within the US but might also impact the working conditions of foreign journalists in other countries. In the words of the President of the US National Press Club: “When we treat journalists differently based on nationality, we invite other countries to do the same”. This already very well captures the idea of reciprocity that often is the determining factor in international visa regulations.

The harshest response to the proposed regulations so far has naturally come from the state whose journalists would face the strictest conditions under the new visa rules, namely China which warned of “media warfare” between the two countries and announced that it may respond similarly with restrictions on US journalists operating in China.

For now, EU officials have largely remained silent on the issue. German foreign minister Johann Wadephul, however, already declared the new regulations would be “unacceptable”. Consequently, it is possible that, should the US actually put the proposed regulations into practice, pressure might be mounting on the EU to react to this violation of Article 19 ICCPR with countermeasures based on Article 49 ARSIWA. These might be enacted under Article 77 TFEU, which generally provides the EU with the competence to adopt measures concerning the visa regulations applying to nationals of third countries. Such countermeasures would due to Art. 50(1)(b) ARSIWA, which prohibits states from implementing countermeasures that affect obligations for the protection of fundamental human rights, be limited by the requirements of international human rights law, especially regional rules on freedom of the press in Article 10 of the European Convention on Human Rights and Article 11 of the Charter of Fundamental Rights of the European Union. Yet, a “reciprocity mechanism” already exists under EU law. According to Article 7 of EU Regulation No 1806/2018, if a non-EU country requires visas from citizens of some EU member states and simultaneously grants visa-free access to citizens of others, the Commission may ultimately suspend the visa waiver for the non-EU country’s nationals. What must be noted, however, is that the EU has to date not dared to use this mechanism against the US despite the fact that citizens of Bulgaria, Cyprus, and Romania still need a visa to enter the US and instead opts to focus on diplomatic efforts and ongoing dialogue to solve the dispute. Right now, it does thus not seem likely that EU states will soon limit the validity of international journalists’ visas to counter tightened US immigration laws. Still, it should be noted that the EU’s toolbox for countering reciprocity violations could, should transatlantic relations deteriorate, in theory be extended to also curb the periods for which US journalists are allowed to remain – and be it only as a gestural threat to apply pressure on Washington. A comparable entanglement by European states between visa renewals and favorable press coverage would however not only be politically unthinkable but also illegal against the backdrop of Article 50(1)(b) ARSIWA.

The more likely and simultaneously more concerning danger is that other “wannabe autocrats” might view the new US approach to journalist visas as a precedent allowing them to further curb the work of foreign correspondents. For instance, only last year India was criticized for dramatically shortening the visas of journalists and at times denying them arbitrarily. It is therefore not too far-fetched to predict that, at a time when journalistic freedom is already under pressure around the globe, other countries will follow and invoke the US example to justify crackdowns on foreign reporters.

Conclusion

Finally, it can be concluded that the proposed US visa rules for foreign correspondents are in themselves problematic because they make life harder for foreign journalists. Even worse, if used as expected, namely as a tool to punish reporters who dare to criticize the Trump administration, they are incompatible with international human rights law and can be described as just another step towards a more authoritarian American democracy. Due to the concept of reciprocity in international visa regulations, they will certainly make it more difficult for American journalists to work in China, might inspire even liberal democracies to adopt stricter rules for foreign journalists, and could additionally serve as a justification for strongmen around the world to raise the pressure on international correspondents.