International human rights law
|International human rights law|
| States are therefore bound by their human rights obligations to both respect and ensure human rights in cyberspace. States also bear international responsibility for the violation of human rights obligations that are attributable to them.
The source of these obligations is primarily treaty law. The two key global treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR); many of these treaties’ provisions, along with the provisions of the Universal Declaration of Human Rights, are regarded as reflective of customary international human rights law, even though there is no universally accepted codification. Apart from the ICCPR and ICESCR, there exist important regional human rights treaty systems, especially for Europe (European Convention on Human Rights – ECHR), the European Union (Charter of Fundamental Rights of the European Union – EUCFR), and America (American Convention on Human Rights – ACHR), which provide for adjudicatory mechanisms by which individuals can assert their human rights against States and which have generated a considerable amount of case-law as a result.
In order to determine whether a State has breached its human rights obligations, the following steps of analysis should be conducted:
Apart from the responsibility for human rights violations attributed to it, a State can also be held responsible for its failure to take all reasonable measures to protect the human rights of individuals in its territory and subject to its jurisdiction (for instance, if it unlawfully allows non-State actors to violate human rights).
Notes and references
- See, for example, United Nations Human Rights Council, The promotion, protection and enjoyment of human rights on the Internet, Resolution A/HRC/RES/32/13 (1 July 2016), para 1; NATO, Warsaw Summit Communiqué (9 July 2016), para 70; G8 Summit of Deauville, Declaration: Renewed Commitment for Freedom and Democracy (27 May 2011), para II/11.
- See, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment)  ICJ Rep 43, para 170.
- International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).
- Formal title: Convention for the Protection of Human Rights and Fundamental Freedoms (opened to the signature in Rome on 4 November 1950, entered into force 3 September 1953), ETS 5 (ECHR); there are several protocols which significantly expand and amend the obligations of the original Convention.
- Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 (EUCFR).
- American Convention on Human Rights (open for signature from 22 November 1969, entered into force 18 July 1978), 1144 UNTS 123 (ACHR).
- Article 2(1) ICCPR.
- UN HRC, ‘General Comment No. 31 (80): The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (adopted on 29 March 2004, 2187th meeting), para 10.
- Cf, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion)  ICJ Rep 136, para 111.
- See, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion)  ICJ 136, para 110; UN HRC, Summary Record of the 1405th Meeting, CCPR/C/SR.1405 (31 March 1995) 6 .
- See, for example, Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56/1 HarvIntlLJ 81.
- Article 17 ICCPR; Article 8 ECHR; Article 7 EUCFR; Article 11 ACHR. The exact titles and scopes of the provisions vary.
- Article 19 ICCPR; Article 10 ECHR; Article 11 EUCFR; Article 13 ACHR. The exact titles and scopes of the provisions vary.
- UN Human Rights Committee, ICCPR General Comment No. 34 (12 September 2011), paras 21-36; See also ICCPR General Comment No. 27 (1 November 1999), paras 14-16.
- See, Velásquez Rodríguez v. Honduras, (Merits) IACrtHR (Ser. C) No. 4 (29 July 1988) .