Computers, Privacy & the Constitution

THE ICESCR AND THE HUMAN RIGHT TO INTERNET ACCESS

INTRODUCTION

Does international human rights law require that countries guarantee internet access to all their citizens? In this essay, I argue that the International Covenant on Economic, Social and Cultural Rights (ICESCR) obligates its more developed signatory states (i.e. those signees not in the “developed world”) to immediately guarantee internet access to all their citizens.

BACKGROUND ON THE ICESCR

The ICESCR has 160 signatories, and every European nation has signed it. It lists various “second generation” rights, and signatories obligate themselves to undertake “steps . . . to the maximum of [their] available resources, with a view to achieving progressively the full realization of the rights recognized in the” Covenant. Article 2 (1). Below, I show that, under this Covenant, the more developed state signatories are obligated to immediately guarantee internet access to all their citizens.

By "obligated to" you mean "would gain the approval of condescending law professors if," because no one is actually empowered to enforce this so-called obligation, right?

Before delving into my argument, I should note that some state signatories have already discharged their obligation to guarantee internet access. See, e.g., “Estonia, Where Being Wired Is a Human Right.” Christian Science Monitor. 1 July 2003 http://www.csmonitor.com/2003/0701/p07s01-woeu.html (discussing legislation that provides internet access to all Estonians).

Does "some" mean "one," or is there another example?

ARGUMENT

The ICESCR recognizes “the right of everyone to education.” Article 13 (1). The Covenant further mandates that education “shall promote understanding” and “tolerance” among “all nations and all racial, ethnic or religious groups.” Id. In sum, all citizens of signatory states have a right to tolerance-promoting education.

Since all citizens of signatory states have a right to tolerance-promoting education, all citizens of these states, in turn, have a right to internet access. This is because internet access is a necessary part of tolerance-promoting education.

Necessary? There is no such thing as tolerance-promoting education without universal access to the network? Surely the General Assembly must had something else in mind in 1966.

Unlike any other medium, the internet allows persons to easily and instantly interact with a member of any ethnicity, religion, or nationality. Since interaction with others is crucial to promoting understanding and, in turn, tolerance of others, internet access is an essential element of tolerance-promoting education. Thus, all citizens of signatory states have a right to internet access.

The fallacy of turning the proposition "X is a good way to achieve goal Y" into "X is necessary to achieve Y" should be obvious.

In turn, under ESCR Committee precedent, this right to internet access obligates signatory states to make internet access affordable to all their citizens. In General Comment 15, in which the ESCR Committee explored the ramifications of the Covenant’s right to water, the committee explained that every Covenant right “imposes three types of obligations on States parties: obligations to respect, obligations to protect and obligations to fulfill.” General Comment 15, para. 20. The committee then held that the obligation to fulfill implies an obligation to ensure “that [the right] is affordable for everyone.” Id. at para. 26. Thus signatory states must adopt measures to guarantee that internet access is affordable to all their citizens. The easiest and cheapest way to do so would be to provide “income supplements,” see General Comment 15, para. 27, to those who cannot afford to purchase a computer or internet access on the private market.

Yet, one may argue that, since the obligation to fulfill Covenant rights is one of “progressive realization” not one of immediate fulfillment, see Article 2 (1), signatory states are not obligated to immediately guarantee internet access. However, although the general rule is one of “progressive realization” of Covenant rights, the ESCR committee has clarified that state signatories, so long as they can afford to do so, must immediately guarantee certain core Covenant rights. “Thus, for example, a State party in which any significant number of individuals is deprived . . . of the most basic forms of education is” presumed to be “failing to discharge its obligations under the Covenant.” General Comment 3, para. 10.

Unless of course states have simply reserved their right not to provide free secondary and higher education, like, say, Japan. In which case the so-called obligation disappears like breath from a mirror. Perhaps it isn't worth wasting time worrying about whether governments have or have not honored "obligations" that mere breathing noises would suffice to dissolve?

The state party can rebut this presumption only if it can show that, in its attempt to guarantee the most basic forms of education, it has taken “every effort” to “use all resources that are at its disposition.” Id.

Since a principal goal of the Covenant’s right to education is to promote tolerance of those of different ethnicities, religions, and nationalities, see Article 13 (1), and since internet access is a form of education that has a unique capability to promote such tolerance, internet access is one “of the most basic forms of education.” Id. In turn, a signatory state that does not immediately guarantee universal internet access presumptively violates the Covenant.

You said this already.

Although developing countries, because of their limited resources, may be able to rebut this presumption that they have violated the Covenant, the more developed states, because of their sizeable resources and existing internet infrastructure, cannot rebut this presumption. In more developed nations, private companies have laid internet cables in all but the most desolate areas. Thus, these countries will not have to spend much on paying private companies to build internet infrastructure. As a result, for more developed nations, almost all of the cost associated with guaranteeing universal internet access will come from income supplements to those who cannot afford internet access or a computer on their own.

What?

Such income supplements, although a substantial government expenditure, are clearly not so expensive that they would break the budgetary back of these more developed countries. After all, these states regularly provide large subsidies and tax breaks to private companies, such as Airbus. In turn, given the budgetary resources that these more developed countries reserve for private companies, it would be disingenuous and inaccurate for these countries to argue that they cannot afford an income supplement that guarantees a basic human right.

CONCLUSIONS

In sum, the more developed signatory nations to the ICESCR are obligated to immediately guarantee that all their citizens have access to the internet. Unfortunately, the U.S. has not signed the Covenant. Yet, do other sources of international law obligate the U.S. to provide universal internet access to its citizens? This is a question beyond the purview of my current essay, and I leave it to subsequent scholars to answer.

-- AndrewHerink - 19 Apr 2010

I don't understand who the essay is addressed to. Public international lawyers will know that the quality of the argument from the text of the Covenant is too loose for professional use. Anyone not a public international lawyer will perceive immediately that the whole process is absurd, because you're arguing that states have obligations that no one is empowered to enforce, and that they can make go away by the verbal ritual of reservation.

Then there's the completely unspecified meaning of "a right of internet access." Does that mean a right to gigabit wired service, or 100bps dialup using an acoustic coupler? Does "the Internet" mean "websites not disapproved of by government," or "all ports/all protocols," or something in between? Did people gain a human right to fax during the fifteen minutes when fax was the best way to conduct tolerant education? If so, is that right extinct now, or do states still have an obligation to pay everybody to use fax machines? And whatever happened to the human right to telephone service? How'd that come out?

Interesting analysis, Andrew. I enjoyed reading your essay. I noticed you had an extra set of comment box and tagline and wondered if they were intended. You might wish to remove them by deleting the second set of "-- Main.AndrewHerink - 19 Apr 2010" (without quotation marks) for the author tag line again, and the second %COMMENT%.

Edit: It did seem to take care of the comment box. I'll work on moving your paper for you. I haven't done it before but perhaps I can figure out how to do so. Edit #2: Yep, that seems to have done it.

-- BrianS - 20 Apr 2010

Thanks, Brian. By the way, do you know how to move my essay into a more accessible location? Right now it's in "CompPrivConst WebHome WebPreferences AndrewHerinkFirstPaper2010? ."

-- AndrewHerink - 28 Apr 2010

I think that took care of the comment box.

-- AndrewHerink - 28 Apr 2010

 

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