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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).<ref>UN HRC, ‘[http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsjYoiCfMKoIRv2FVaVzRkMjTnjRO%2bfud3cPVrcM9YR0iW6Txaxgp3f9kUFpWoq%2fhW%2fTpKi2tPhZsbEJw%2fGeZRASjdFuuJQRnbJEaUhby31WiQPl2mLFDe6ZSwMMvmQGVHA%3d%3d 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.</ref> 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”.<ref>Cf, [https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf <i>Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories</i><nowiki> (Advisory Opinion) [2004]</nowiki>] ICJ Rep 136, para 111.</ref>
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).<ref>UN HRC, ‘[http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsjYoiCfMKoIRv2FVaVzRkMjTnjRO%2bfud3cPVrcM9YR0iW6Txaxgp3f9kUFpWoq%2fhW%2fTpKi2tPhZsbEJw%2fGeZRASjdFuuJQRnbJEaUhby31WiQPl2mLFDe6ZSwMMvmQGVHA%3d%3d 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.</ref> 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”.<ref>Cf, [https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf <i>Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories</i><nowiki> (Advisory Opinion) [2004]</nowiki>] ICJ Rep 136, para 111.</ref>


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.<ref>See, [https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf <i>Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories</i><nowiki> (Advisory Opinion) [2004]</nowiki>] ICJ 136, para 110; UN HRC, <i>Summary Record of the 1405th Meeting,</i> CCPR/C/SR.1405 (31 March 1995) 6 [20].</ref> 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,<ref>See, for example, Marko Milanovic, ‘[http://www.harvardilj.org/wp-content/uploads/561Milanovic.pdf Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age]’ (2015) 56/1 HarvIntlLJ 81.</ref> the prevailing opinion at present is that human rights obligations do apply to some acts of a State outside its territory.</li>
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.<ref>See, [https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf <i>Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories</i><nowiki> (Advisory Opinion) [2004]</nowiki>] ICJ 136, para 110; UN HRC, <i>Summary Record of the 1405th Meeting,</i> CCPR/C/SR.1405 (31 March 1995) 6 [20].</ref> 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,<ref>See, for example, Marko Milanovic, ‘[https://www.ilsa.org/Jessup/Jessup16/Batch%202/MilanovicPrivacy.pdf Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age]’ (2015) 56 Harvard International Law Journal 81.</ref> the prevailing opinion at present is that human rights obligations do apply to some acts of a State outside its territory.</li>


<li>If an international human rights regime is applicable, the second question is whether a cyber operation attributable to a State constitutes an <b>interference</b> with a particular human right. The human rights that are often implicated by cyber operations include the right to privacy<ref>Article 17 [https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx ICCPR]; Article 8 [https://www.echr.coe.int/Documents/Convention_ENG.pdf ECHR]; Article 7 [http://www.europarl.europa.eu/charter/pdf/text_en.pdf EUCFR]; Article 11 [https://www.oas.org/dil/treaties_b-32_american_convention_on_human_rights.pdf ACHR]. The exact titles and scopes of the provisions vary.</ref> and the right to freedom of opinion and expression.<ref>Article 19 [https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx ICCPR]; Article 10 [https://www.echr.coe.int/Documents/Convention_ENG.pdf ECHR]; Article 11 [http://www.europarl.europa.eu/charter/pdf/text_en.pdf EUCFR]; Article 13 [https://www.oas.org/dil/treaties_b-32_american_convention_on_human_rights.pdf ACHR]. The exact titles and scopes of the provisions vary.</ref></li>
<li>If an international human rights regime is applicable, the second question is whether a cyber operation attributable to a State constitutes an <b>interference</b> with a particular human right. The human rights that are often implicated by cyber operations include the right to privacy<ref>Article 17 [https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx ICCPR]; Article 8 [https://www.echr.coe.int/Documents/Convention_ENG.pdf ECHR]; Article 7 [http://www.europarl.europa.eu/charter/pdf/text_en.pdf EUCFR]; Article 11 [https://www.oas.org/dil/treaties_b-32_american_convention_on_human_rights.pdf ACHR]. The exact titles and scopes of the provisions vary.</ref> and the right to freedom of opinion and expression.<ref>Article 19 [https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx ICCPR]; Article 10 [https://www.echr.coe.int/Documents/Convention_ENG.pdf ECHR]; Article 11 [http://www.europarl.europa.eu/charter/pdf/text_en.pdf EUCFR]; Article 13 [https://www.oas.org/dil/treaties_b-32_american_convention_on_human_rights.pdf ACHR]. The exact titles and scopes of the provisions vary.</ref></li>

Revision as of 15:13, 14 September 2021

Definition

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

Australia

The Czech Republic

Finland

Japan

New Zealand

Norway: 2021

Key message
States must comply with their human rights obligations in cyberspace, just as they must in the physical world. States must both respect and protect human rights.

"International human rights law applies to cyber activities just as it does to any other activity. States must comply with their human rights obligations also in cyberspace, as they must in the physical world. States must both respect and protect human rights, including the right to freedom of expression and the right to privacy.

Neither the individuals that are subject to a State’s jurisdiction, nor the concept of jurisdiction, is altered by the fact that the activity attributed to the State is a cyber activity. In this respect, cyber activity is no different from other means that States may use to violate their human rights obligations towards their citizens."[16]

Romania: 2021

"Human rights are protected similarly both in offline as well in online contexts.

International law does not recognise a right to States to derogate from their international human rights obligations as a defensive-type measure – for instance to restrict access to internet in all circumstance as a responsive measure to counter some types of conduct in cyberspace (which generally pertain to criminal law, like: countering terrorism, violent extremism or fraud).

The circumstances in which limitations to human rights are permitted are well established in international law and apply the same way in offline and in online contexts. In most cases, the factors to be weighted include whether the restriction serves a legitimate purpose, whether it has a legal basis and whether it is necessary and proportionate to the interest it aims to protect.

Therefore, whatever regulation a State adopts (by virtue of its sovereign right) it must conform with its international obligations in the field of human rights. Otherwise it entails its legal responsibility under the relevant international conventions.

It is our view that the existing human rights instruments provide sufficient scope for effectively safeguarding the protection of human rights in cyberspace."[17]

Switzerland

The Netherlands

United Kingdom: 2021

"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."[18]

United States of America: 2012

United States of America: 2016

"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." [19]

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, 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 Harvard International Law Journal 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. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136, August 2021, 75.
  17. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136, August 2021, 78.
  18. ↑ United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement, 3 June 2021
  19. ↑ Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016 16-17.

Bibliography and further reading

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