[discuss] [governance] [bestbits] Fwd: Heads up on Brazil meeting preparation

Wed Jan 29 14:53:40 EST 2014

Just a bit from a human rights lawyer:

On Wed, Jan 29, 2014 at 6:11 PM, JCN Global <jc.nothias at theglobaljournal.net
> wrote:

> According to you John, is 'Privacy' a norm or a standard? I don't see it
> that way. If it was so, why does Vint Cerf explains with his usual sense of
> 'Star Wars' humor, that privacy does not exist anymore? "Why do you guys
> bother about it?"
>

That's good fun as a quote. However, it's similar to making a statement
along the lines of 'After Guantánamo, the right not to be tortured doesn't
exist anymore. Violations of the right to privacy took place and are taking
place on the Internet. There are different conceptions as to what privacy
means in the US, Europe and the rest of the world. But privacy is a right,
a human right.

> Regarding Internet Human Rights, please bring to the table any serious
> professor of law, knowing a bit of what are human rights, and see what he
> thinks of digital human rights. Sorry we have some good ones here in
> GENEVA.
>

I know. I studied in Geneva. They would say: "digital human rights" or
"human rights for the Internet" are a term used as a campaigning tool to
visualize the implications of human rights for the Internet. They would
point to HRC Resolution 20/8 that confirms that all offline rights apply
online.

> Have we got per say, "Print Human RIghts", or 'Phone Human Rights", or
> "Traveling Human Rights". Human rights cover all aspects of rights without
> consideration of the 'vehicle'. With the UN Human Rights charter,
>

There is not such a thing as the UN Human Rights Charter. You probably mean
the Universal Declaration of Human Rights, which, together with the
International Covenant on Civil and Political Rights and its two Optional
Protocols, and the International Covenant on Economic, Social and Cultural
Rights can be called the Itnernational Bill of Human Rights.

> you already have all what you need to get anyone condemn for infringement
> of human rights over the Internet whether you take Freedom of expression,
> or any other sort of violation.
>

The case that human rights lawyers make is not that we need a new right to
freedom of expression on the Internet. The case they make is that we need
to apply existing human rights to the Internet. I just published a book
making this clear: Freedom of Expression and the Internet
(2014)<https://book.coe.int/eur/en/human-rights-and-democracy/5810-freedom-of-expression-and-the-internet.html>
.

> You could argue that the UN could put up a case against all the big
> corporation that are violating 'privacy' of billion.
>

"The UN" is not the primary actor responsible for ensuring human rights.
States are. They have the duty to respect, protect and enforce human
rights. Germany, for instance, should consider seriously what avenues of
action are open to it due to possible violations by the Five Eyes states of
international legal obligations. States also have extraterritorial human
rights duties.

> The Human Right Council should be a good venue for this.
>

No, it's not. The Human Rights Council is good place to discuss human
rights on the Internet on a general level, but it is not well-equipped to
quickly solve legal questions. However, all states are obliged to submit
reports under the Universal Periodic Review Mechanism. States' observance
of human rights of the Internet should be carefully scrutinized.

> I see the technical community as people enjoying the 'no-limit' game, or
> no-boundaries game. A 'Law of the Internet' would call for respect of
> values, common values, and not just norms and standards.
>

We already have a law of the Internet in the sense that we have norms that
apply to the Internet. Most of them originate in international legal
sources. Customary legal duties and general principles of international law
are applicable to the Itnernet.

> This is one of the few points where the gap or divide between the current
> holders of an asymmetric IG are not ready to go. History will prove them
> that they are wrong by confusing norms/standards and values/law. All of
> them have to come together. And that requires much more TRUST, LEGITIMACY.
>

I guess this really depends on who you talk to. Anybody with a background
in law would argue that norms law is expression of the values of the
community that produces the law. Norms (as in normative order) are just
another name for laws. Standards are norms that are usually set my
non-state actors but may be given law-like power (by laws or internaitonal
law).

> Think about it John, this is only a DEMOCRATIC CHALLENGE. Asymmetrics have
> to accept a global demand to introduce DEMOCRACY back in the game, not just
> a phony 'equal footing' norm or standard, that clearly means nothing to any
> honest Democrat.
>

What is important to me, is to discuss how the traditional democratic
legitimation within national states can be translated into settings where
public authority is exercized by non-state actors or by international
organizations. We need to discuss which new types of legitimacy we can
conceptualize that can be applied in international settings.

Kind regards
Matthias

>
>
>
> JC
>
>
> Le 29 janv. 2014 à 16:56, John Curran a écrit :
>
> On Jan 27, 2014, at 12:17 PM, JCN Global <jc.nothias at theglobaljournal.net>
> wrote:
>
> Contrary to the idea of a disjunction and or a subset of ICANN/IANA
> functions away from the US DoC, I do believe that what is most need is a
> supreme international body to which stakeholders can turn themselves to in
> order to have any claim brought to a truly independent body. I am more
> interested to see how a 'Law of the Internet' can be taken care of by such
> a body. Detaching the DoC from ICANN is indeed what is of present concern.
> But refusing to take International law, as the right way to get all
> national authorities signatures at the bottom of an international treaty,
> is so unthinkable that I do believe the status-quoers are fully aware of
> what they are doing to oppose any change. I do not see how any 'Equal
> Footing' empty principle could ever bring a government to sign such a
> treaty. You have been refusing this for years. It is no longer a
> sustainable position. And I do suspect that you know it.
>
>
> JC -
>
> Regarding the scope of your hypothetical "supreme international body"
> (which is apparently your
> proposed solution to the present situation) - are you advocating that
> there be treaty body to establish
> "Law of the Internet" as opposed to recognition of the applicability of
> existing international norms
> to actions that now take place over the Internet?
>
> i.e.  "Internet" Human Rights distinct from Human Rights, "Internet"
> Personal Privacy distinct
>         from Personal Data Privacy rights, "Internet" Diplomatic law
> rather than Vienna Diplomatic
>         relations, etc.?
>
> The Internet is a communications medium, and while it may have unique
> aspects, I am trying to
> discern whether that is the limit of the scope of your hypothetical
> supreme international body
> or whether it is something greater.
>
> Thanks!
> /John
>
> Disclaimer: My views alone.
>
>
>
>
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-- 

Dr. Matthias C. Kettemann, LL.M. (Harvard)
Post-Doc Fellow | Cluster of Excellence
"<http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>Normative
Orders<http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>
"<http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>,
University of Frankfurt/Main
Lecturer | Institute of International Law and International Relations,
University of Graz <http://voelkerrecht.uni-graz.at/en/>
Research Affiliate | European Training and Research Centre for Human Rights
and Democracy, University of
Graz<http://trainingszentrum-menschenrechte.uni-graz.at/en/infos-fuer-studierende/>

Exzellenzcluster "Normative Ordnungen", Goethe-Universität Frankfurt/Main
EXC-8, Grüneburgplatz 1
60323 Frankfurt/Main, Deutschland

E | matthias.kettemann at gmail.com
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T | 0049 69 798 31508 (office)
Blog <http://internationallawandtheinternet.blogspot.com/> |
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 | Google Scholar <http://scholar.google.ch/citations?user=8jRGt2QAAAAJ> | my
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Recent publications:
Freedom of Expression and the Internet
(2014)<https://book.coe.int/eur/en/human-rights-and-democracy/5810-freedom-of-expression-and-the-internet.html>
Netzpolitik in Österreich [Net Politics in Austria] (2013,
ed.)<http://publikationen.collaboratory.at/mri/>
Grenzen im Völkerrecht [Limits of International Law] (2013,
ed.)<http://www.jan-sramek-verlag.at/Buchdetails.455.0.html?buchID=139&cHash=e856a8a762>
The Future of Individuals in International Law
(2013)<http://www.elevenpub.com/law/catalogus/the-future-of-individuals-in-international-law>
European Yearbook on Human Rights 2013 (2013,
co-edited)<http://www.nwv.at/recht/verfassungsrecht/1019_european_yearbook_on_human_rights_2013/>
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