Human Rights in Cyberspace
by Cees Hamelink
Cees J. Hamelink is Professor of International Communication at the University of Amsterdam. He studied theology and psychology at the University of Amsterdam where he graduated in 1968 and received his Ph.D. in 1975. Professor Hamelink is the editor-in-chief of Gazette, the International Journal for Communication Studies and Honorary President of the International Association for Media and Communication Research. He is presently policy advisor to several international organisations (such as Unesco) and national governments, mainly in developing countries. For the United Nations Research Institute for Social Development he coordinates a study on information-communication technologies in social development. He is the initiator of the People's Communication Charter. His major publications include Cultural Autonomy in Global Communications (1983), Finance and Information (1983), and The Technology Gamble (1988). Recent publications -still in print- are The Politics of World Communication (Sage: London, 1994) and World Communication (1995, Zed Books: London). Shortly UNESCO will publish his Media Regulation and Media Independence. This article was prepared in 1998 for the UN Chronicle. Paper presented to the Victorian section of the Australian Communication Association, 5th December, 1989.
Cyberspace is the virtual communicative space created by digital technologies. It is not limited to the operation of computer networks, but also encompasses all social activities in which digital information and communication technologies (ICT) are deployed. It thus ranges from computerised reservation systems to automated teller systems and smart cards. With the ‘embedding’ of digital facilities in more and more objects (from microwave ovens to jogging shoes), these acquire intelligent functions and communicative capacities and begin to create a permanent virtual life-space.
The issue of the governance of cyberspace emerges in many current ICT-debates at different levels.
There is the staunch anarchistic position that considers cyberspace a totally new and alien territory where conventional rules do not apply. For those holding this cyber-libertarian view (represented by visionaries like John Perry Barlow) no governance is the best governance.
But, however attractive this approach may seem, if more people are to use cyberspace this is likely to need public and corporate policymaking. This is equally the case if cyberspace is to be protected against unprecedented opportunities for criminal activity.
Moreover, cyberspace technology does create a virtual reality, but this is not altogether de-linked from politics in the real world.
Opposed to cyber-anarchy are those governments who would want a strict regime for activities in cyberspace in order to control not only the pornographers, and neo-Nazis but also the copyright pirates or just anybody who holds politically subversive aspirations.
Then there are the cyberspace citizens who feel they can best police themselves and who discuss among themselves a variety of forms of self regulation ranging from Parent Control software to CyberAngels, Codes of Conduct and Netiquette.
Cyberspace is perceived by the digital settlers as the last ‘electronic’ frontier, but cyberspace also colonizes our non-virtual reality and lest it totally controls daily life it needs to be governed by norms and rules.
A re-current question is whether cyberspace gives rise to new forms of democratic [electronic] governance, which are less-territory based, less hierarchical, more participatory, and demand new rules for political practice.
Whatever position one may take regarding future governance of cyberspace, it can not be denied that in any case (moral) choices have to be made and are being made since inevitably the proliferation of cyberspace technologies implies like all technological development a confrontation with moral issues on different levels.
These relate to -among others- choices about the way the technology will be designed; choices among possible applications and the responsibility for certain applications; choices about the the introduction and the use of applications. They also address issues such as the unequal distribution of harm and benefit of applications among social actors; the control over technology and its administration; and the uncertainty about the future impacts of technology.
The specific question that concerns me here is whether the current international human rights regime can provide us with meaningful moral and legal guidance for the solution of these moral choices.
The international human rights regime
In response to the assaults against human dignity during the Second World War, the United Nations began to develop a universal framework of moral standards. This was to become the international human rights regime.
Before 1945 there were human rights declarations, such as the Magna Charta of 1215, the British Bill of Rights, the American Declaration of Independence and the French D=82claration des droits de l’homme et du citoyen. In 1945 this long history of the protection of human dignity acquired a fundamentally new significance.
The novelty of the international human rights regime -as it was established after 1945- was the articulation of the age old struggle for the recognition of human dignity into a catalog of legal rights. Moreover, the political discourse shifted from "rights of man" to the more comprehensive "human rights".
The protection of human dignity (earlier on mainly a national affair) was put on the agenda of the world community. Herewith, the defense of fundamental rights was no longer the exclusive preoccupation of national politics and became an essential part of world politics. The judgement whether human rights had been violated was no longer the exclusive monopoly of national governments.
More importantly yet, the enjoyment of human rights was no longer restricted to privileged individuals and social elites. The revolutionary core of the process that began at San Francisco - with the adoption of the UN Charter in 1945- was that "all people matter". Basic rights were to apply to everyone and to exclude no one.
The new regime would evolve around a set of basic texts (some codified as legally binding instruments and some adopted as customary law) and mechanisms for their enforcement. The foundation for the regime was laid down in United Nations Universal Declaration of Human Rights (adopted on December 10, 1948 by the UN General Assembly) and the two key human rights treaties, the International Covenant on Economic, Social and Cultural Rights (in force since January 3, 1976) and the International Covenant on Civil and Political Rights (in force since March 23, 1976).
In these three documents (commonly referred to as the International Bill of Rights) one finds seventy six different human rights. If one were to take totality of some fifty major international and regional human rights instruments the number of rights would obviously increase even further. There is also presently a tendency among human rights lobbies to put more and more social problems in a human rights framework and thus to add to the number of human rights.
Since this proliferation of rights does not necessarily strengthen the cause of the actual implementation of human rights, various attempts have been made to establish a set of core human rights that are representative for the totality. One effort concluded to the existence of twelve core rights (Jongman, A.J. and Schmid, A.P., 1994: 8).
1. The right to life
2. The right not to be tortured
3. The right not to be arbitrarily arrested
4. The right to a fair trial.
5. The right not to be discriminated against
6. The right to freedom of association
7. The right to political participation
8. The right to freedom of expression
9. The right to food
10. The right to health care
11 The right to education
12. The right to fair working conditions
These rights are the legal articulation of fundamental moral principles and their implied standards of human conduct.
These principles and standards are:
The universal validity of the human rights regime and its basic moral categories has been a contentious issue for some time.
However, the United Nations World Conference on Human Rights (at Vienna in 1993) has stated in its unanimously adopted declaration, "The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond question". This recognition of universal validity does not mean that all local forms of implementation will be similar. A variety of cultural interpretations remains possible. This has provoked the question of the degree to which local cultural interpretations can be accepted. There is increasing support for the view that culturally determined interpretations reach a borderline when they violate the core principles of human rights law. Moreover, this view holds that the admissibility of the interpretation should be judged by the international community and not by the implementing party.
How are the basic human rights standards relevant to cyberspace?
A first issue that emerges concerns the observation that the human rights regime is firmly embedded in modernist, Enlightenment thought that seems to collide with the view that cyberspace is "a manifestation of the postmodern world" (Loader, 1997: 8).
Characteristic of the modern world are the physical categories, such as location, gender, ethnicity, appearance, from which cyberspace seems to liberate us.
There is a pragmatic answer to this question. Even if the international human rights regime is affected by the flaws of modernity in today’s reality the regime is more noted for its violations than its respect, and the world would undoubtedly be a safer place for the world’s majority if its provisions were implemented.
Moreover, cyberspace itself it solidly rooted in and connected with the forces of modernity. It originates with the military establishment (that created the predecessor of the Internet) and is strongly promoted by the world’s leading financial and industrial corporations.
It seems however necessary to expand the discussion with a conceptual critique of the conventional human rights discourse. The real significance of human rights standards can only be uncovered if a number of theoretical inadequacies are addressed and remedied. Conventional theories on human rights imply limitations to the understanding of human rights that erode the effective implementation of the very basic claims they enunciate. These theories are characterized by their exclusive emphasis on individual rights; their limited interpretation of the concept ‘freedom’; their limited understanding of the concept ‘equality’; their limited scope for ‘horizontal effect’; and their lack of institutional consideration.
Individual and collective rights.
Human rights have both individual and collective dimensions. "There are also rights which present individual and collective aspects. Freedom of religion and freedom of expression are cases in point" (Van Boven, 1982: 54). Rights to language and religion are enjoyed in communities. They cannot be implemented by protecting individual rights only. Also the right to development demonstrates this relationship. UNGA Res. 34/46 of 1979, states that "the right to development is a human right and that equality of opportunity for development is as much a prerogative of nations as of individuals within nations". As a result, in the discussion on the locus of human rights the individual and the community cannot be separated. Individuals do not exist in isolation and are members of communities. Communities do not exist outside the individuals that make up the collective. Sanders concludes that "individual rights and collective rights are distinct ideas, they are separate categories. Some individual rights can be vindicated without reference to collective rights...But other basic rights -such as freedom of religion-cannot be effectively vindicated without the recognition of collective rights" (Sanders, 1991: 383).
This does not exclude that in different cultural and ideological traditions there are conflicting emphases on the individual versus the collective. There may be conflicts between individual and collective rights. This needs careful balancing. For example, in the case of the collective right to cultural autonomy of a group that practices sexual discrimination through the practice of female circumcision. A guiding principle here is the provision of Art. 5 of ICCPR and ICESR which prohibits any collective to engage in acts that are "aimed at the destruction of any of the rights and freedoms" recognized in the Covenants. The exercise of collective rights cannot imply the destruction of individual rights. In international law there has been a remarkable evolution from an exclusive emphasis on sovereign nation-states, to individuals, to non-state social groups (peoples) and to humankind. There is still a strong tendency to give priority to individual rights, and states tend to be inclined towards the recognition of the collective rights of minorities and usually favour assimilation over cultural autonomy. Even so, there is increasing recognition of collective rights. Following Sanders (1991) collective rights are claims on behalf of communities (for example ethnic minorities) that seek to protect their specific features, such as cultural or linguistic characteristics. Sanders distinguishes collective rights from group rights, "the major limitation of group rights is that they only exist while the discrimination continues" (Sanders, 1991:
369). Groups are joined because of external discrimination, whereas collectivities are joined by internal cohesiveness. "Collectivities seek to protect and develop their own particular cultural characteristics" (Sanders, 1991: 369). For example, "cultural minorities seek more than the right of their individual members to equality and participation within the larger society. They also seek distinct group survival" (Sanders, 1991: 370).
Negative and positive freedom.
The basic assumption of conventional human rights thinking regarding the freedom of information is that freedom of expression as such is given and that there should only be protection against the danger of interference by the state. This assumption glosses over the fact that in the reality of unequal societies this freedom does not exist for everyone. In almost every society individuals and peoples are silenced. Therefore, the right to freedom of expression would have to rather focus upon the provision of access to the public expression of opinions than on the prevention of restricting opinions.
Moreover, conventionally, the concept of freedom is constructed in a negative sense only. The classical right to freedom of expression is a good illustration. It provides a freedom from interference of the state with the expression of opinions, ideas, and information. Complete freedom, however, also encompasses the freedom to emancipation and self-development. It implies a process of human emancipation.
Conventional human rights conceptions do not provide this positive extension of the basic norm of freedom. The ‘freedom to’(positive freedom) points to a process of empowerment through which people liberate themselves from all those forces that hinder them in taking decisions concerning their own lives. This interpretation of freedom implies a process of emancipation that should be guided by the basic norm of the sovereignty of individuals and peoples.
The liberal right to freedom of expression does not imply that everyone acquires equal access to the means of expression. An important element too is that the freedom of information in the liberal tradition is not directly linked with the principle of equality. As a result it offers insufficient support to the "information-poor" who claim that their freedom of information can only be realised in case adequate means of expression are available. The liberal interpretation does not favour the use of preferential measures ("positive discrimination") in situations of social inequality.
Conventional human rights theories are biased towards a European tradition in which it is assumed that all human beings are equally capable in asserting their rights and in which the legal system is formally based upon the assumption of the initiative of free citizens to defend their rights. These liberal foundations of human rights law tend to neglect the reality of the widely differential capacity to such initiative. In reality, the powerful are always better in asserting their rights through litigation than the less powerful.
Whenever the concept of equality is used this usually pertains to the Lockean interpretation of "one rule for rich and poor" or to the Kantian interpretation of non-discrimination: the law should treat all citizens as equals.
In these interpretations the law recognizes a formal concept of equality that is related to the perception of inequality as a form of social differentiation which can and should be corrected. Law is anti-discriminatory in the sense of repairing social disadvantage by the equal treatment of unequals. This however does not change the structurally unequal relations of power. The equal treatment can even reinforce the inequality. Providing equal liberties to unequal partners functions in the interest of the most powerful.
In a more adequate interpretation of ‘equality’, the concept means equal entitlement to the social conditions that are essential to emancipation and self development.
Conventional human rights thinking mainly focuses on the vertical state/citizen relation and the basic moral standards almost exclusively focus on the political sphere. This ignores the possibility that concentration of power in the hands of individuals can be as threatening as state power. Whenever citizens pursue different economic interests, individual human rights will be under serious threat. Citizens also need to be protected against each other.
A concept like of equality should therefore be extended to all those (socio-economic and cultural) spheres that are essential to human emancipation and self-development. Beyond the concern to realize equal voting rights in democratic societies, for example, the need to create equal participation in cultural life, should receive similar emphasis.
Human rights cannot be realized without involving citizens in the decision-making processes about the spheres in which freedom and equality are to be achieved.
The idea of human rights has thus to extend to the social institutions (the institutional arrangements) that would facilitate the realization of fundamental standards. This moves the democratic process beyond the political sphere and extends the requirement of participatory institutional arrangements to other social domains.
It claims that also culture and technology should be subject to democratic control.
This is particularly important in the light of the fact that current democratization processes (the "new world order" processes) tend to delegate important areas of social life to private rather than to public control and accountability. Increasingly large volumes of social activity are withdrawn from public accountability, from democratic control, and from the participation of citizens in decision-making.
How does this apply to cyberspace?
Human rights in cyberspace should not only be articulated as individual rights, but should be recognized both as individual and as collective rights.
To put human rights exclusively in either category limits unduly the rights of individuals as members of a community or the rights of the collectivity. Collective claims to cyberspace communications require provisions on the access to public communication on behalf of social groups. This is particularly important as so many social groups, eg women, ethnic minorities, or poor communities tend to be excluded from cyberspace communications.
In addition to this right of access for communities, collective claims also include the right to development, and the recognition of communal knowledge resources.
The recognition of the development principle in world communication politics implies the entitlement to the development of communication infrastructures, to the procurement of adequate resources, the sharing of knowledge and skills, the equality of economic opportunities, and the correction of inequalities. The communal claim to intellectual property recognizes that knowledge resources are often a common good owned by a collective. Knowledge as common heritage should be protected against its private appropriation by knowledge industries. Collective claims also imply provisions on cultural identity, on the recognition of cultural diversity and linguistic variety, or on the cultural autonomy of communities.
What does the positive interpretation of "freedom to" imply for cyberspace?
Following Bourdieu’s use of the terms ‘cultural’ and ‘social capital ) "The position of a given agent within the social space can thus be defined by the positions he occupies in the different fields, that is in the distribution of the powers that are active within each of them. These are, principally, economic capital (in its different kinds) cultural capital and social capital, as well as symbolic capital, commonly called prestige, reputation, renown, etc, which is the form in which the different forms of capital are perceived and recognized as legitimate". (Bourdieu, 1984).
Information capital refers to the motivation and the interest to be informed, the capacity to process and apply information resources, the technical skills to manipulate ICT and the financial means to secure access to and use of digital networks. In national and global social realities the distribution of information capital is highly skewed.
This is reinforced by growing income inequalities across the world (by what could be termed the "globalisation of poverty") and the concurrent lowering of educational standards (and decline in status and salaries of teaching staff) and shifts in educational programmes from critical reflection to training for economic productivity (Postman) and the dramatic loss of credibility political institutions face almost everywhere. The "freedom to" implies the entitlement to those socio-economic conditions that support the development of "information-capital".
This principle implies that "all people matter" and that no person should be excluded. The cyberspace project of a Global Information Superhighway could exclude vast numbers of people. The norm of equal entitlement to cyberspace resources is deeply threatened by the current disparities in access to the uses of ICT. This gap is for example illustrated by the fact that 77% of the world population has only 5% of the world’s telephone lines. The communication gap in the world is not decreasing. On the contrary, it is widening. There are no indications that the international donor community or national governments make a serious effort to change this. Rather the opposite occurs. The UNDP support to telecommunications in the developing countries, for example, went down from US $ 27 million in 1990 to US $ 2.2 million in 1995.
Without major public efforts in this field, the global super information highway is not likely to include the two billion people who live on less than $300 a year, or the more than 1 billion people who are illiterate and some 500 million children for whom there are no schools.
When he launched the Global Information Infrastructure project in a 1994 speech at the conference of the International Telecommunication Union in Buenos Aires, US Vice President Al Gore spoke very movingly about the creation of this mother of all networks.
"The development of the GII...must be a democratic effort.... In a sense, the GII will be a metaphor for democracy itself.... I see a new Athenian Age of democracy forged in the fora the GII will create. .... The Global Information Infrastructure .... will circle the globe with information superhighways on which all people can travel. These highways -or, more accurately, networks of distributed intelligence- will allow us to share information, to connect, and to communicate as a global community". Vice President Al Gore referred to a New Age of Athenian democracy. He may well be right since Athens had a highly discriminating political arrangement. Athenian democracy excluded slaves and women. Women are likely to be excluded from the global electronic democracy unless current female disadvantages in computer access, use and skills are drastically changed. If the tradition of women’s use of new technologies continues, women will have little chance to define their role in cyberfuture. "The users of the Net are predominantly male, white, young and university-educated". (Smith, 1995: 22).
A form of governance for cyberspace that takes equal entitlement to its resources seriously requires far reaching changes of the current political practices in such areas as development assistance, transfer of technology, intellectual property protection, and space cooperation. These practices all reinforce the inegalitarian character of the present global order. Changes would include a drastic increase in overseas development assistance in the field of communication and under conditions more favourable to recipient parties, the adoption of the UNCTAD Code of Transfer of Technology on the terms proposed by the developing countries, a revision of provisions on the protection of intellectual property in the GATT/TWO multilateral trade accord so as to take the interests of less powerful countries and small producers into account, and the adoption of a multilateral accord on space cooperation and equal benefits.
The moral standard of human security tends to receive a limited interpretation in the individualistic legal and biological sense. Article 3 of the Universal Declaration of Human Rights ("Everyone has the right to life, liberty and security of person") has to be read in the context of Articles 5 and 9 which protect people’s moral and physical integrity against interference from state and non-state actors. This implies protection against torture, cruel inhuman and degrading treatment and against arbitrary treatment in the form of arrest, detention or exile on grounds not established by law.
The International Covenant on Civil and Political Rights provides for a similar protection of personal security in Article 9. In the International Covenant on Social and Economic Rights (Article 9) security is broadened to social security, inclusive of social security.
However important this is, it reflects the common one-sided view in which human rights are almost exclusively understood to mean civil and political rights.
Processes of economic growth that immiserate ever larger groups of people are usually not perceived as a gross violation of human rights by most Western governments, donor institutions, or as a matter of fact, by many human rights organizations. If in the normal course of free market operations, World Trade Organization rules, or IMF conditionalities, millions of people are uprooted, impoverished, or unemployed, this is usually not seen as human rights violations. Human rights advocates usually attack murder and torture, but not poverty. The exclusive perception of human rights as civil and political rights, is dangerously shortsighted. It creates explosive contradictions between political conditionalities that press for good governance, democracy and respect for human rights and economic conditionalities that impose such austere measures that the resulting inequalities can only be controlled by highly undemocratic policies!
The policies of the IMF have -across the Third World- undermined the economic conditions for democracy, such as education, social equality, and reduction of poverty. The structural adjustment programmes of the IMF have in fact in many countries weakened the capacity of governments to meet international human rights obligations. The neglect of basic social and economic rights undermines such civil and political rights as freedom of expression and freedom of association.
In view of the increasing vulnerability of contemporary societies to a broad range of social risks, including the possibility of total human extinction, the human rights regime needs to incorporate a broader concept of global human security. (Beck, 1992; Leslie, 1996).
Human security is to-day jeopardized by fundamental risks induced by the process of modernization and its global spread. There are risks related to economic maldistribution -the growing income disparities in the world and the globalisation of poverty entail lethal risks for increasingly large numbers of people in the world.
There are risks related to ecological catastrophes (the desertification, the depletion of the Ozone layer, the deforestation, the Greenhouse effect).
There are industrial risks such as a multiplication of the Bhopal catastrophe.
There are risks related to the proliferation of nuclear arms and conventional arms (eg biological and chemical warfare). There are risks related to bio-technological experimentation and genetic engineering.
There are also social risks related to cyberspace-technology. These include nuclear warfare triggered off by compter malfunctioning, large-scale financial frauds, technological addiction, and aviation diasters. Intentional harm is easily inflicted in cyberspace. Computer networks enable people to communicate in anonymity. Anonymity brings out the worst in people. Under the cloak of anonymity people engage in harmful acts against others through abuse and deceit. Apparently, anonymity creates a ‘moral distance’ to the victim which makes it easier to commit harmful acts. It is the classical case of the bomber pilot who pushes the button and never knows who was hit. The Information Superhighway creates enormously attractive opportunities for ‘digital crooks’ and ‘cybersnoopers’. Such crimes and misdemeanours which range from copyright infringements to electronic surveillance pose serious threats to people’s moral and physical integrity.
Cyberspace-related social risks to human security are also induced by the increasing dependence upon vulnerable and error-prone digital systems. A risk factor is also the cybernisation of daily life which reinforces current trends towards high-speed, robot-centric societies.
Human rights should have horizontal effect. They should not only apply to state-citizen, but also to citizen-citizen relationships In the case of information provision there should be protection against information oligopolies organized by fellow-citizens. This so called "Drittwirkung" or third party effect of human rights means, for example, that information rights of people should be free from interference by public as well as by private parties. Already in the discussions leading to the human rights Covenants it was proposed that interference by private parties should be barred. The proposal did not acquire the status of legal provision. "An individual has the right to freedom of opinion without interference by private parties as well, and the state is obliged to ensure that freedom....It is doubtful, however, whether the complex problem of protecting a person’s opinion against interferences by other individuals can be solved in this global and absolute manner" (Partsch. 1981: 218).
In spite of these reservations, the defense of freedom of expression should go beyond state interference and incorporate the reality of situations in which private parties exercise power equivalent if not exceeding that of the state.
The right to freedom of expression goes beyond this negative freedom from interference, however, and includes the recognition of positive free speech rights.
If the freedom of expression is interpreted in more than the classical negative sense, the positive interpretation makes it necessary to define this right not merely as a liberty but as a claim-right. A positive freedom to communicate implies the claim-right to express opinions and the related entitlement to facilities for the exercise of this right. The recognition of freedom of expression as positive claim-right is particularly important in situations where the voices of some people are systematically excluded. In such situations the mere freedom from interference does not enable people to participate in public communication (Barendt, 1985: 86).
It is becoming increasingly clear that cyberspace needs defense against attempts to impose censorship. This defense should not only be directed against governmental actors. Informational self-determination (encompassing free speech, freedom to receive and seek information, the right to control person-related information, the right to confidentiality of communication, and the right to refuse information) is threatened by the fashionable Information Superhighway project. This happens for example as a result of the potential and highly likely censorship exercised by mega gatekeepers. At the gateway to the Information Superhighway stands a shadowy figure looking oddly like Rupert Murdoch. (Winsbury, 1995: 8). As the Information Superhighway project is to be privately funded and commercially driven by the market there needs to be a system that defines what services the consumer will get, that charges consumers for what they get and shuts out those who cannot pay. If major companies invest billions of dollars in the Information Superhighway they will want control of access to consumers so they can recoup these investments.
The freedom principle should offer protection against the control of information and media by a limited group of citizens. Beyond the freedom to be protected from state interference, the right should also address the restrictions that fellow-citizens can pose upon access to information.
This notion has two dimensions. It proposes to include all people into decision-making that affects their lives and to extend such participation beyond the political realm. Maximum participation and extended equality call for the participation of people in decision making in former elitist fields such as technology and culture.
Especially in the light of the increasing privatization of the production of technical knowledge and cultural expressions, also these social spheres should be subject to democratic control. This requires that affected citizens have a right to participate in decisions about its development and utilization of technology and culture..
This is undoubtedly a complex order, since technology and culture are related to special requirements of expertise, skills, and creativity. It will therefore be necessary to explore introducing forms of democratic control that do not constrain the essential input of individual expertise, and creativity. The individual scientists, engineers, and artists may resist the notion of technological and cultural democracy, but it would be fallacious to believe that they are fully autonomous to-day. They may stand more to gain than to lose, if their creativity is subject to common good considerations rather than to corporate profit motives.
Cyberspace and public accountability.
The implementation of human rights, as Hossain rightly observes (1997: 20) requires "good governance". "Governments as well as powerful corporations must adhere to respect human rights and be accountable for their conduct measured by human rights standards". The serious obstacle here is that increasingly governments are (often voluntarily) losing the regulatory instruments to control the powerful corporations and global governance is increasingly the arena of private business actors. The trade mark of these actors is the refusal of public accountability for their conduct.
This principle makes the key players in world communication accountable for their decision-making on behalf of others. Decisions that affect people’s daily lives are taken in such matters as the quality of information, the diversity of cultural products, or the security of communications. The decision makers are increasingly private parties which are neither elected nor held accountable. As a matter of fact the worldwide drive towards deregulation of social domains tends to delegate important areas of social life to private rather than to public control and accountability. Increasingly large volumes of social activity are withdrawn from public accountability, from democratic control, and from the participation of citizens in decision making.
The global corporations that control ever more facets of people’s daily lives, have become less accountable to public authorities everywhere in the world. ‘Most corporate leaders, while proudly exercising their constitutionally protected right to influence elections and legislation, deny that they are making public policy merely by doing business. They do not accept responsibility for the social consequences of what they make or how they make it’. (Barnet and Cavanagh, 1994: 422). The key issue is therefore the establishment of public accountability of the most powerful private players.
It would seem however that the adoption of strict rules of public accountability of private players is highly unlikely in the first place and that their enforcement would probably be beyond the power of public authorities. The only effective pressure could come from the main constituencies of these players, the customers on their markets. Ultimately they are dependent upon the people who buy their goods and services and for whom they decide such matters as the quality of their food, clothing, entertainment, work, environment or health care.
The establishment of accountability therefore demands a massive mobilisation and politicisation of consumer movements around the world.
International human rights law remains a weak and largely non-enforceable arrangement. It should not be ignored that this is a conscious political choice. Most nation-states have shown little interest in interference with their human rights record. The state-centric arrangement of world politics in which states are unwilling to yield power over their citizens is still dominant and stands squarely in the way of universal respect for human rights. In current world politics states still maintain a considerable measure of sovereignty in the treatment of their citizens. Yet, the United Nations World Conference on Human Rights of 1993 has reaffirmed that "the promotion and protection of all human rights is a legitimate concern of the international community".
The real significance of these standards will depend upon the degree of their enforcement. Present remedial procedures are mainly based upon the Optional Protocol (OP) to the International Covenant on Civil and Political Rights (ICCPR, 1966) and Resolution 1503 adopted by the Economic and Social Council of the UN (ECOSOC) in 1970.
The Protocol authorizes the UN Human Rights Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. Individual complaints can only come nationals of states that are party to the OP (presently 75 states). The OP provides for communications, analysis, and reporting, but not for sanctions. Resolution 1503 recognizes the possibility of individual complaints about human rights violations. It authorizes the UN Human Rights Commission to examine,"communications, together with replies of governments, if any, which appear to reveal a consistent pattern of gross violations of human rights". The 1503 procedure is slow, confidential, and provides individuals with no redress.
In addition to the UN Human Rights Commission, and the Human Rights Committee to monitor the ICCPR, institutional mechanisms for implementation are the Committee on the Elimination of Racial Discrimination, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination against Women, the Committee against Torture, and the Committee on the Rights of the Child.
However important the work of these bodies is, their powers to enforce human rights standards are very limited. The UN Human Rights Commission is a permanent body of the ECOSOC. Its members are state representatives. Findings of the Commission have a certain significance but are not binding.
The Human Rights Committee consists of eighteen experts supervising the implementation of the ICCPR. The work of the Committee covers only parties that ratified the covenant (presently 129 states) and provides international monitoring on the basis of reports provided by states. The Committee’s monitoring does not imply any sanctions, but it can generate some negative publicity on a country’s human rights performance. For the implementation of the Race convention the Committee on the Elimination of Racial Discrimination has been established. The Committee can receive complaints among states, but only fourteen states authorize the Committee to receive communications from individuals.
The implementation body for the 1979 Convention on the Elimination of Discrimination Against Women is the Committee on the Elimination of Discrimination Against Women. The Committee is not authorized to receive individual communications.
Whatever may be the case, it is clear that the worldwide lack of implementation of human rights standards, poses the most serious challenge to the human rights regime.
It is also obvious that the world would be a different and far more humane place for many people if human rights standards were respected.
The most important issue for the significance and validity of the regime then is the implementation of the standards it proposes. There is abundant evidence that these standards are around the world almost incessantly violated and by actors with very different political and ideological viewpoints. Usually, in wars of liberation, for example, one finds gross violations both by the hands of the oppressors as well by those of the liberators. And if one studies the depressing reports from such bodies as Amnesty International, there appear to be no countries where human rights are not violated.
For moral philosophers this is actually not a terribly surprising problem. It concerns the classical gap between the moral knowledge human beings possess and their intention to act morally.
The People’s Communication Charter.
The recognition of individual rights under international law was thus linked with the notion that individuals also have duties under international law. This was eloquently expressed in 1947 by Mahatma Gandhi in a letter to the director of UNESCO about the issue of human rights. Gandhi wrote, "I learnt from my illiterate but wise mother that rights to be deserved and preserved came from duty well done".
The People’s Communication Charter articulates essential rights and responsibilities that ordinary people have in relation to their cultural environment. It represents an attempt to redress some of the weaknesses inherent in the conventional human rights regime. It aspires to a democratic and sustainable organisation of the world’s communication structures and information flows. It is abundantly clear that these great ideas cannot be simply implemented by drafting and revising a text. The text constitutes merely a point of reference for a much needed civil activism that targets what arguably is a very central social domain.
The People’s Communication Charter is an initiative of the Third World Network (Penang, Malaysia), the Centre for Communication & Human Rights (Amsterdam, the Netherlands), the Cultural Environment Movement (USA), the World Association of Community Radio Broadcasters (AMARC), and the World Association for Christian Communication.
The Charter provides the common framework for all those who share the belief that people should be active and critical participants in their social reality and capable of governing themselves. The People’s Communication Charter could be a first step in the development of a permanent movement concerned with the quality of our cultural environment.
The movement should not be seen by those who work in the mass media as a populist intervention with their professional independence. It should rather be welcomed as a creative alliance between media producers and consumers against those commercial forces that are more intent on generating profits than on informing people properly.
If we want to apply human rights standards to relations in cyberspace this requires the active responsibility on behalf of those who are concerned.
>From the beginning it was clear that the Charter should not be seen as an end in itself. It intends to provide the basis for a permanent critical reflection on those worldwide trends that determine the quality of our lives in the third millennium. The Charter has now been adopted by a growing number of organizations and individuals around the world and several activities inspired by the Charter are planned for the coming years. Among them an international tribunal on violations of the Charter’s rights. In August 1997, for example, the Charter was displayed at the famous Dokumenta exhibition at Kassel, Germany. The text was discussed and signed by many visitors. To-day the Web site of the Charter is the place where such events and the progress in widening support for the PCC is made public.
The core themes of the movement concern:
1. Communication and human rights
Communication and information services should be guided by respect for fundamental human rights.
2. The public domain.
Communication resources (such as airwaves and outerspace) belong to the "commons"; they are public domain and should not be appropriated by private parties.
Communication and information services should not be monopolized by governments or business firms.
People are entitled to the protection of their cultural identity and to the development of their communicative capacities.
5. Public accountability.
Providers of communication and information services should accept public accountability for the quality of their performance.
The cultural environment is ultimately not only shaped by governments and media moguls, but in important ways by the clients of the system.
We need a critical debate on the use of the international human rights regime as instrument of moral guidance. Ultimately, all depends upon the commitment of people themselves to shaping a humane governance for our future in cyberspace.
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