[governance] Inputs for synthesis paper [General comments, only!]

Thu Sep 11 05:26:30 EDT 2008

Dear all,

[please note that this posting does not suggest any substantive changes, 
but rather dicusses some general aspects of the debate and attempts to 
clarify what we perceive as misunderstandings of human rights law that 
emerged during the debate. If you're busy, you can save the message and 
reflect over it during the weekend.]

while we cannot address all aspects of the discussion led on the list, 
we -- as international lawyers and human rights experts -- feel that the 
debate that has taken place over the last days (while leading to a 
statement that we feel mentions some highly relevant issues concerning 
human rights in the Internet) has not always served the purpose it 
purported to serve: clarifying our commitment to the protection of human 
rights on the Internet.

Let us therefore draw your attention to the following general points, 
some of which have been taken up by Parminder in yesterday's message of 
07:51 GMT+1.

1. The often acrimonious debates on the primacy of individual over 
collective rights and of first over second and third 
dimension/generation of human rights lead us nowhere. In fact, most 
serious human rights literature has discarded the notion of generation 
of rights as an ideological concept developed against the backdrop of 
the Cold War. It serves no purpose to attempt to renew these debates. 
Let us keep them buried.

2. Already the Universal Declaration of Human Rights, which is expressly 
mentioned by the Tunis Agenda, has integrated individual as well as 
(some) collective rights into his catalogue of rights. Further, in the 
Vienna Declaration and Programme of Action of 1993 the international 
community highlighted that "[a]ll human rights are universal, 
indivisible and interdependent and interrelated." (UN Doc. A/CONF.157/23 
of 12 July 1993, para. 5). Any attempt to divide human rights into 
rights with more and rights with less significance runs contrary to the 
spirit of the Vienna Declaration and the UDHR. The states assembled in 
Vienna 15 years ago agreed that "[t]he international community must 
treat human rights globally in a fair and equal manner, on the same 
footing, and with the same emphasis." The same is true for our community 
of scholars and practitioners interested in the role of -- all -- human 
rights on the Internet.

3. Rights without remedies exist. A right does not cease to exist if it 
is violated. Even if some rights, such as the right to education, can be 
realized only progressively, they have, nevertheless, real implications 
for governments. These include, e.g., the obligation to ensure 
effectively the enjoyment of -- at least -- the minimum content of the 
right, in a non-discriminatory fashion, and to progressively enhance the 
level of enjoyment. And of course: the right to work does not imply a 
right to a specific job, but rather a right to enter into the 
socio-economic activities necessary to live a dignified life.

4. Declaring a "right to the Internet" seems like a attractive, simple 
and inspiring concept, but a closer look reveals that the concept 
involves a number of different (and sometimes competing) human rights. 
Should it be a right to Internet access? A right to e-literacy? A right 
to content in one's own language. These are questions we need to clarify 
first -- and we need to clarify them urgently. Creating new rights does 
not bring us closer to ensuring respect for, and the protection of, 
human rights in Internet Governance. A serious, unapologetically honest 
debate, however, does.

5. A member of our list has suggested that "[w]omen do no have special 
rights because of the nature of their sex. Women have rights because 
they are individuals." This principle of equality as formally expressed 
in law, without differentiation between women and men, often implies 
hidden discrimination against women. Due to the different positions and 
roles that society constructs for women and men "de iure" equality often 
results in "de facto" discrimination. Therefore any discussion on the 
human rights of women presupposes an in-depth analysis of the concepts 
of difference, disadvantage and discrimination in the context of 
pluralizing societies and should be based on a substantive definition of 
equality that takes into account the societal definition of gender as 
contained in Article 7 of the Statute of the ICC and the groundbreaking 
work of the committee under the UN Convention on the Elimination of all 
Forms of Discrimination against Women (CEDAW).

As the Universal Declaration of Human Rights celebrates its 60th 
anniversary on 10 December 2008, let us look beyond the ideological 
debates of the past and enter into a human rights dicourse that can 
provide answers to the challenges of the future: This necessitates a 
holistic concept of human rights. The language of our synthesis paper 
should reflect this commitment -- and the compromise language now seems 
to do so.

Wolfgang and Matthias

PS: Should you feel the need for a short introduction into the concept 
of human rights and its fundamental notions, feel free to consult, e.g., 
Wolfgang Benedek (ed.), Understanding Human Rights. Manual on Human 
Rights Education, 2nd edition, Berlin/Antwerp/Vienna: 
BWV/Intersentia/NWV, 2006.

The book is also available online in 14 languages at 
http://www.etc-graz.at/typo3/index.php?id=704. 

The English version can be found at 
http://www.etc-graz.at/typo3/index.php?id=446

-- 

Professor Dr. Wolfgang Benedek
Mag. Matthias C. Kettemann

Institute of International Law and International Relations
University of Graz, Austria
Universitätsstraße 15/A4, 8010 Graz, Austria

T +43 316 380 6711 (office)
F +43 316 380 9455 (fax)

E wolfgang.benedek at uni-graz.at
E matthias.kettemann at uni-graz.at 

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