Posted 14 June, 2011 by Christopher Wilson

Oh no they di’nt…

The engine room has been on the road recently, Alix presenting the Tahrir data project at this year’s Personal Democracy Forum, and I presenting on open data standards for international human rights indices, with quite a bit going on in-between.

More about all of this soon, but first a quick post to clear up a story I have seen shooting across the politico-tech sphere:

No, the United Nations did NOT declare the internet to be a human right.

headline to the contrary is great, and fits well into the Arab Spring narrative that many of us are still vainly hoping will blossom into a real domino effect of democratization. So it is understandable that many smart commentators have grabbed at it–with varying degrees of precision (PdF notes that the “declaration” was in a report, Mashable that disconnection constitutes a violation). But it is simply not the case, at least not in any meaningful sense.

A few clarifications:

  1. “The UN” did not do anything.
  2. The report did not “declare” anything
  3. “The internet” cannot be endowed with rightiness

“The UN” did not do anything.

“The UN”, is a tremendously multi-faceted institution, with 129 country offices, about a dozen main agencies and a host of committees, councils, programmes, funds, specialized agencies and quasi-UN institutions (World Bank) that don’t always talk to each other, much less do things together. I know of no comprehensive overview of the UN structure, but click on the images below for a taste of labyrinth. If “the UN” exists at all as a unified entity, it certainly does not do much, and certainly doesn’t declare things. (The UN Security Council and the General Assembly regularly adopt declarations, but these are of dramatically different character).

In any case, the declaration at issue is a report written by the United Nations Special Rapporteur on the promotion and protection of the right to freedom and expression, Frank La Rue. Special Rapporteurs are appointed by the UN Human Rights Council (HRC), which is in turn elected by the General Assembly. Special Rapporteurs have a time-bound mandate to explore and promote individual rights (or rights as enjoyed in geographic areas). There are thematic rapporteurs for torture, business and human rights, the right to food and many others. Rapportuers conduct field missions, hold press conferences, and write reports on the substance of respective rights, which they then submit to the HRC in order to inform that body’s deliberations. Rapporteurs also perfom important advocacy roles, and command important legitimacy that they can lend to individual activities and initiatives.  Rapporteurs do not, by any means, speak for the UN, and are often best understood as antagonistically opposed to the UN, which is made up of members states searching for ways to limit human rights and protect their own interests.

It is in this sense the thematic rapporteurs are perhaps most important.  They play a critical role in trying to keep the HRC honest, drawing attention to facts on the ground, consolidating civil society concerns, and identifying areas and directions in which human rights need to evolve as the dynamic legal norms they are. In this area, Frank La Rue has been especially good, having played an important role in protecting the freedom of expression from limitation by legislation against religious defamation. It is also in this regard that this report will be an important document for guiding ongoing debate and study of the human right to free expression, in the Human Rights Council, in other UN bodies, in academic research, and in advocacy at the country level.

The report did not “declare” anything.

Frank La Rue’s report does not once use the word declare in a present tense. And this is no coincidence.

In a UN context, human rights are legal norms, codified in 9 core international treaties, each monitored by UN treaty committee, and which together constitute a distinct body of international law. Declare is also a legal term, and declarations have legal force in intenational law when they constitute the operative part of a treaty by which states are explicitly bound. Human rights are binding upon state parties (and state parties only) only through treaties.  Thus, even if La Rue (or the HRC, or the General Assembly) were to declare that the internet (or my blender) was a human right, this would not constitute a clear obligation under international human rights law, unless a certain number of states signed at the bottom.

The Human Rights Committee (the body overseeing the international treaty in which freedom of expression is enshrined, not to be confused with the Human Rights Council through which Special Rapporteurs derive their mandate) may very well deliberate and determine in a Concluding Observation (treaty body jurisprudence) that internet censorhip constitutes a human rights violation. If they have not already done so, then they will likely draw heavily on La Rue’s excellent report when they do. This will have direct consequences for how that Committee considers alleged violations in the future, and will also provide important fodder to rights advocates. It will not, however, alter signed treaties, or produce any new and direct legal obligations for states.

“The internet” cannot be endowed with rightiness

As mentioned, human rights are limited in number (not disregarding the “problem” of inflation), as codified in international and regional treaties. When new human rights are created, it is because a new right is included in a new treaty, or because it is recognized, by appropriate bodies, to be an aspect of an existing right (the right to water is the best example of this, which has steadily gained international recognition as explicitly and implicitly protected by core treaties).

That said, things like “the internet” can never be a right, and even “access to internet” carries with it a host of problems both conceptual and pragmatic (involving the identification of duty bearers in both instances). What La Rue is actually saying in this report (quite clearly, in fact), is that the internet provides an important mechanism for people to exercise their freedom of expression and their right to access information, as well as being an important tool for actualizing a host of other rights. This should be no surprise, but it is an important, as an official and actionable document in the often glacial evolution of human rights law and policy.

Of course, it might also be worth saying clearly that “the internet” is itself no more a right than are books, the telegraph or sign language (though blocking any of them without passing the appropriate legal test will constitute a violation of the human right to free expression).

And that should satisfy this month’s quota for mild rants.

La Rue’s report is a very import piece of work in the ongoing development of human rights norms in our digital world, and is certainly  worth reading carefully for those interested in the issues.  A searchable pdf is available through the General Assembly, here.

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