International human rights law

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Definition[edit | edit source]

International human rights law
International human rights law applies in cyberspace; individuals enjoy the same human rights online as they enjoy offline.[1] 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.[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], the 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.

In order to determine whether a State has breached its human rights obligations, the following steps of analysis should be conducted:

  1. Since cyber operations often take place in the cyber infrastructure of multiple States, the issue of jurisdiction must be addressed. Each human rights treaty has its own bespoke jurisdictional requirements and scope. 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] The UN Human Rights Committee has understood this provision to mean that the human rights obligations recognized within the ICCPR apply not only to persons physically located within a State’s territory, but also to situations where the State exercises “power or effective control” either over the territory on which an individual is located (the spatial model of jurisdiction) or over the individual (the personal model of jurisdiction).[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] A few States (such as the US and Israel) have adopted the contrary view and maintain that human rights obligations do not apply extraterritorially. To date, however, these States remain in the minority.[10] As such, although the exact criteria for the applicability of human rights obligations to extraterritorial activities of States are not settled and are subject to ongoing academic and political debate,[11] the prevailing opinion at present 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 an interference with a particular human right. The human rights that are often implicated by cyber operations include 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 justified, namely:
    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. necessary to achieve 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 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).[15]

National positions[edit | edit source]

Australia[edit | edit source]

"International human rights law (IHRL) also applies to State conduct in cyberspace. Under IHRL, States have obligations to protect relevant human rights of individuals under their jurisdiction, including the right to privacy, where those rights are exercised or realised through or in cyberspace. Subject to lawful derogations and limitations, States must ensure without distinction individuals' rights to privacy, freedom of expression and freedom of association online."[16]

The Czech Republic[edit | edit source]

"[...]the Czech Republic also recognizes that the rights of states to exercise exclusive jurisdiction over the ICTs located on its territory gives rise not only to rights but also obligations. In particular, the Czech Republic wishes to reiterate that international human rights law is applicable to cyberspace in its entirety.

Indeed, the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with article 19 of the Universal Declaration of Human Rights and of the International Covenant on Civil and Political Rights (ICCPR).

Furthermore, the Czech Republic reiterates that freedom of peaceful assembly and of association, enshrined in Article 22 of the ICCPR, applies to cyberspace as much as it applies to the physical domain.

In this context, the Czech Republic calls attention to the recommendations of the UN Special Rapporteur that call on states to ensure that any interference with the rights to freedom of peaceful assembly and of association is “prescribed by law”. Furthermore, any restrictions implemented on the grounds of “national security”, “public safety” or “protection of morals” should be clearly and narrowly defined in law, so as to prevent their abuse by authorities.

Finally, the Czech Republic recalls that the right to privacy, enshrined in Article 17 of the ICCPR, is fully applicable in the digital sphere. States must demonstrate that any interference with an individual’s privacy is both necessary and proportionate to address the specific identified security risks. We see the role for a private sector here as well.

In this context, the Czech Republic calls upon all States to address cybersecurity concerns in accordance with their international human rights obligations to ensure the protection of all human rights online, in particular the three rights we just spoke of - freedom of opinion and expression, freedom of association and the right to privacy."[17]

"[...]the Czech Republic welcomes initiative of Freedom Online Coalition and fully supports its recent Joint statement on Human Rights Impact of Cybersecurity Laws, Practices and Policies approved at the summit in Accra[...]".[18]

Finland[edit | edit source]

Japan[edit | edit source]

"International human rights law is also applicable to cyber operations. Individuals enjoy the same human rights with respect to cyber operations that they otherwise enjoy. Pursuant to international human rights law, States are under the obligation to respect human rights. The human rights that must be respected in cyberspace include all human rights that are recognized under international human rights law, such as civil, political, economic, social and cultural rights. The human rights that are particularly relevant in the context of cyberspace include the right to privacy, freedom of thought and conscience, freedom of expression, and guarantee of due process. The final sentence of paragraph 28(b) of the 2015 GGE report affirms the above. While Norm 13(e) of the report affirms some of the obligations under international human rights law, it does not change the obligations that are not mentioned therein."[19]

New Zealand[edit | edit source]

"International human rights law applies to cyber activities. States must comply with their obligations to protect and respect human rights online, including the right to freedom of expression and the right not to be subjected to arbitrary and unlawful interference with privacy. States are obliged to respect and ensure human rights to those individuals within their territory and subject to their jurisdiction. The circumstances in which states exercise jurisdiction, through cyber means, over individuals outside their territory is currently unsettled and would benefit from further discussion in multilateral fora."[20]

Switzerland[edit | edit source]

"Human rights are a cornerstone of international law. They are enshrined in a number of treaties including the UN Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). Fundamental human rights are also part of customary international law and can in part be categorised as jus cogens. Today, state obligations in respect of human rights have several dimensions. States must refrain from interfering with human rights (obligation to respect), protect individuals and groups against any such interference by third parties (obligation to protect) and take positive action to facilitate the enjoyment of basic human rights (obligation to fulfil).

Human rights also apply in the digital space and are a key pillar in the international regulatory framework for digitalisation. Individuals therefore have the same rights in the digital space as they do in physical space. This also applies to state security activities in cyberspace i.e. part of the digital space. Human rights obligations are equally binding upon states operating in cyberspace as in physical space. This also applies when the cyber operation in question is being carried out extraterritorially, to the extent that the States exercise their sovereign authority in doing so. If a cyber-related activity results in a violation of human rights, the victim will in principle have recourse to the enforcement mechanisms of the applicable domestic and international treaties in the same way as if the violation had been committed in physical space. Human rights monitoring bodies and tribunals can expand the scope and applicability of human rights in their practice.

A number of specific human rights may be particularly affected by cyber-related activities. An individual's right of access to information, right to privacy, or freedom of expression for example, could be restricted because of cyber operations or other cyber-related measures.

A state must be able to justify restricting these or other human rights in cyberspace based on the same rules that apply in physical space. In principle, any act of state interference requires an adequate legal basis. The state must also be able to demonstrate that in the balance of interests its actions are appropriate, necessary and reasonable in order to meet a legitimate objective.

Switzerland considers the applicability of human rights to cyberspace to be an unequivocal principle. However, new questions may arise when considering how this applies in individual cases. For example, if cyber-related activities are used to block access to social media, the question of freedom of expression may need to be clarified – at what point can this legally protected right be interfered with? Can the individual continue to exercise this right through alternative communication channels? To what extent are private actors also bound by human rights obligations? Human rights bodies need to develop their work in this field in order to ensure the application of human rights in cyberspace."[21]

The Netherlands[edit | edit source]

"Human rights are just as valid in cyberspace as they are in the physical domain. There is no difference between online and offline rights. This has been recognised by the United Nations General Assembly, among others. However, it is clear that ongoing digitalisation and technological advances are raising new questions and presenting new challenges when it comes to the application of human rights. The increased scope for collecting, storing and processing data creates issues concerning the right to privacy. Similarly, the increased options for people to express their views via online platforms raise questions with regard to the freedom of expression. It is conceivable that in the future a number of these issues will require further regulation at national or international level. At present, however, the government believes that the existing range of human rights instruments provides sufficient scope for effectively safeguarding the protection of human rights in cyberspace.

It is also clear that access to the internet is becoming increasingly important to the effective exercise of human rights, not only for human rights defenders and NGOs (which can use social media to draw attention to human rights violations and mobilise support), but for everyone. Rights such as freedom of expression and freedom of association and assembly have gained a new dimension with the advent of social media, as have the right to education and the right to health, given the wealth of information and training courses available online. The right to privacy and the right to family life are another example, thanks to the increased scope for digital communication. At the same time the risk of violations of human rights online has also increased. There is now more scope for surveillance, and disinformation has become more widespread.

The growing relevance of the internet to human rights underlines the need for a secure, open and free internet. The government is working at international level to promote this aim."[22]

United Kingdom: 2021[edit | edit source]

"Human rights obligations apply to States’ activities in cyberspace as they do to in relation to their other activities. The UK continues to support the view set out in Human Rights Council Resolution 20/8 that ‘the same rights that people have offline must also be protected online…’. States have an obligation to act in accordance with applicable international human rights law, including customary international law, and international conventions to which they are a party, such as the International Covenant on Civil and Political Rights, other UN treaties, and regional instruments such as the European Convention on Human Rights.

States’ respect for their human rights obligations in relation to their activities in cyberspace is essential to ensuring an open, secure, stable, accessible and peaceful environment and certain rights may have particular relevance to States’ activities in cyberspace including the right not to be subjected to arbitrary or unlawful interference with privacy, family, home or correspondence, the right to freedom of thought, conscience and religion and the right to freedom of expression."[23]

United States of America: 2012[edit | edit source]

"At the same time that cyber activity can pose a threat, we all understand that cyber-communication is increasingly becoming a dominant mode of expression in the 21st century. More and more people express their views not by speaking on a soap box at Speakers’ Corner, but by blogging, tweeting, commenting, or posting videos and commentaries. The 1948 Universal Declaration of Human Rights (UDHR)—adopted more than 70 years ago—was remarkably forward-looking in anticipating these trends. It says: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In short, all human beings are entitled to certain rights, whether they choose to exercise them in a city square or an Internet chat room. This principle is an important part of our global diplomacy, and is encapsulated in the Internet Freedom agenda about which my boss, Secretary Clinton, has spoken so passionately."[24]

United States of America: 2016[edit | edit source]

"The Internet must remain open to the free flow of information and ideas. Restricting the flow of ideas also inhibits spreading the values of understanding and mutual respect that offer one of the most powerful antidotes to the hateful and violent narratives propagated by terrorist groups.

That is why the United States holds the view that use of the Internet, including social media, in furtherance of terrorism and other criminal activity must be addressed through lawful means that respect each State’s international obligations and commitments regarding human rights, including the freedom of expression, and that serve the objectives of the free flow of information and a free and open Internet. To be sure, the incitement of imminent terrorist violence may be restricted. However, certain censorship and content control, including blocking websites simply because they contain content that criticizes a leader, a government policy, or an ideology, or because the content espouses particular religious beliefs, violates international human rights law and must not be engaged in by States." [25]

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  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, 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].
  11. See, for example, Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56/1 HarvIntlLJ 81.
  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].
  16. Australian Government, Australia's position on how international law applies to State conduct in cyberspace
  17. Richard Kadlčák, Statement of the Special Envoy for Cyberspace and Director of Cybersecurity Department of the Czech Republic, 11 February 2021, 4
  18. Richard Kadlčák, Statement of the Special Envoy for Cyberspace and Director of Cybersecurity Department of the Czech Republic, 11 February 2021, 4
  19. Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations, 16 June 2021, 7-8
  20. The Application of International Law to State Activity in Cyberspace, 1 December 2020, 4.
  21. Federal Department of Foreign Affairs, Switzerland's position paper on the application of international law in cyberspace, May 2021, 8
  22. Government of the Kingdom of the Netherlands, Appendix: International law in cyberspace, 26 September 2019 , 5-6.
  23. United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement, 3 June 2021
  24. Harold Hongju Koh, International Law in Cyberspace, 18 September 2012, 9-10
  25. Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016 16-17.

Bibliography and further reading[edit | edit source]