International human rights law

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Definition

International human rights law
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International human rights law applies in cyberspace and individuals should be able to enjoy the same human rights online as they do offline.[1] States are therefore bound by their human rights obligations to both respect and ensure human rights in cyberspace. They bear international responsibility for the violations of the human rights obligations that are attributable to them.[2]

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);[3] 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)[4], European Union (Charter of Fundamental Rights of the European Union – EUCFR),[5] and America (American Convention on Human Rights – ACHR)[6], 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.

An analysis of a possible violation of a human rights obligation by a State has to take the following points into account:

  1. Since cyber operations often take place in the cyber infrastructure of multiple States, the issue of jurisdiction must be addressed. In this regard, every State party to the ICCPR has undertaken “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the [ICCPR]”.[7] That can include persons not in the State’s territory but over which such State exercises power or effective control, as noted by the UN Human Rights Committee.[8] The International Court of Justice (ICJ) has gone even further by stating that the ICCPR “is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”.[9] In sum, even though the exact criteria for the applicability of human rights obligations to extraterritorial activities of States are not settled and are subject to an academic and political debate,[10] and even though some States (such as the US and Israel)[11] refuse the concept entirely, the overwhelmingly prevailing opinion at the moment is that human rights obligations do apply to some acts of a State outside its territory.
  2. If an international human rights regime is applicable, the second question is whether a cyber operation attributable to a State constitutes a non-negligible interference with a particular human right. The human rights that are often implicated in cyber operations are the right to privacy[12] and the right to freedom of opinion and expression.[13]
  3. Not every State interference with a human right is also a violation of international human rights law. For an interference to be legal, it must be:
    1. in accordance with an accessible and foreseeable domestic law (“legality”),
    2. pursuing a legitimate objective of public interest (such as national security, public order, public health, or morals) or for the protection of rights of others,
    3. strictly necessary in achieving that objective, and
    4. proportionate in balancing the means and the end.[14]

Apart from the responsibility for human rights violations attributed to it, a State can also be held responsible for its lack of due diligence to protect the human rights of individuals in its territory and subject to its jurisdiction (for instance, if it unlawfully lets non-State actors violate human rights).[15]

Appendixes

See also

Notes and references

  1. 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.
  2. See, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, para 170.
  3. 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).
  4. 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.
  5. Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 (EUCFR).
  6. American Convention on Human Rights (open for signature from 22 November 1969, entered into force 18 July 1978), 1144 UNTS 123 (ACHR).
  7. Article 2(1) ICCPR.
  8. 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.
  9. Cf, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136, para 111.
  10. See, for example, Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56/1 HarvIntlLJ 81.
  11. See, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ 136, para 110; UN HRC, Summary Record of the 1405th Meeting, CCPR/C/SR.1405 (31 March 1995) 6 [20].
  12. Article 17 ICCPR; Article 8 ECHR; Article 7 EUCFR; Article 11 ACHR. The exact titles and scopes of the provisions vary.
  13. Article 19 ICCPR; Article 10 ECHR; Article 11 EUCFR; Article 13 ACHR. The exact titles and scopes of the provisions vary.
  14. 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.
  15. See, Velásquez Rodríguez v. Honduras, (Merits) IACrtHR (Ser. C) No. 4 (29 July 1988) [177].

Bibliography and further reading