United Nation Cybercrime Treaty Negotiations – Fifth session
The Tradition of Human Rights Limitation Conditions and Safeguards in International Law
INTRODUCTION
This document is designed to inform dialogue on the inclusion of human rights conditions and safeguards within the draft text of a global cybercrime treaty, in the context of the ongoing negotiation sessions of the Ad hoc committee to elaborate a comprehensive international convention on countering the use of information and communications technologies for criminal purposes (AHC; see UN Doc. 75/282).
Human rights law carries great importance in the context of international law and cyberspace. Over the past two decades, global discourse and diplomacy on internet governance and international law has consistently incorporated the full protection of human rights among the foundational considerations informing the development of international law in this field.2 In national systems, States have accelerated the adoption of constitutional and legislative provisions recognizing the right to peaceful assembly, the right to privacy and data protection, and other rights prominently impacted by internet governance.3 At the same time, international human rights monitoring bodies have increasingly associated overly broad, arbitrary or discriminatory restrictions to human rights in the name of internet governance with repressive regimes, and have repeatedly highlighted that unchecked digital surveillance power chills participation,4 undermining democratic societies and ultimately the rule of law.5
This note reviews authoritative legal and scholarly materials on the acceptability of restrictions to human rights, emphasizes the need to fully incorporate principles and standards concerning the limitation of human rights alongside references to human rights values within the text of the draft treaty, and explains the operation of these principles and standards, drawing on the practice of human rights courts, tribunals and monitoring bodies and national courts.
I. HUMAN RIGHTS LIMITATIONS: GENERAL CONSIDERATIONS
Most human rights are not absolute.6 There is wide recognition of the acceptability of human rights limitations,7 and wide agreement on both the conditions for assessing the lawfulness of such limitations and safeguards against their abuse. This includes authoritative statements and interpretive guidance from across all regions of the world that, to be lawful, limitations on rights and freedoms must respect the conditions of legality, necessity, and proportionality.8
The possibility of acceptable limitations on human rights by states and private parties in the exercise of their international legal obligations is not an invitation to restrict human rights. On the contrary, the imposition of any limitations should be guided by the objective of facilitating the right in question, rather than placing unnecessary and disproportionate limitations on it.9
Moreover, there is also wide recognition of the interdependence of human rights. Interdependence in this context means that the “full protection” of one right will often depend on overlapping measures of protection and promotion of other rights.10 This characteristic of human rights law has been recognized in United Nations (UN) General Assembly and Human Rights Council resolutions, including those covering the right to freedom of expression and the right to privacy.11
Taking these general considerations into account, all human rights encompass several common core elements: a value, a regime of limitations, and an effective remedy. In other words, limitations, and the recourse to effectively challenge them, “constitute the right,” as much as the specific substantive value or guarantee (e.g., “the right to liberty and security of person” or “privacy” or “life”).12 The full protection of human rights requires the full articulation of each element, whereas invoking human rights values without giving equal weight to their lawful limitation and remedial measures of protection weakens the overall likelihood that human rights will be enjoyed in practice.
The International Covenant on Civil and Political Rights (ICCPR), ratified by 173 States Parties, often serves as the starting point for understanding the interrelationship between human rights values (the substantive element) and lawful restrictions under international human rights law. ICCPR Article 2 defines the scope of obligations States Parties undertake in ratifying the ICCPR. These include obligations “to respect and to ensure (art. 2(1)), to adopt legal and other measures to do so (art. 2(2)), and to provide effective remedies for violations (art. 2(3)).”13 States must give effect to these obligations in good faith14 and may not invoke provisions of internal law to justify a failure to perform treaty obligations.15 Article 2(1)’s obligation to respect and ensure imposes both negative and positive obligations. The Human Rights Committee (HRC), the treaty body responsible for monitoring State compliance, has also emphasized through its General Comments the “interrelationship” that exists between positive obligations under Article 2 and the duty to provide effective remedies for violations of Covenant rights under Article 2(3).16
Throughout the ICCPR, different express and implied limitations may be considered applicable, depending on the right in question and the factual circumstances prevailing; however, the HRC has consistently applied the same requirements regardless of variations in limitations language contained in the specific language of the provision in question.17
A group of eminent international law experts adopted the influential Siracusa Principles in 1984, setting down the basic principles guiding the acceptability of human rights limitations under the ICCPR, including that:
All limitations “shall be provided for by law” (Principle 5)
“Every limitation imposed shall be subject to the possibility of challenge to and remedy against its abusive application (Principle 8)
“Necessary” under the Covenant implies that the limitation (Principle 10)
“(a) is based on one of the grounds justifying limitations [],
(b) responds to a pressing public or social need,
(c) pursues a legitimate aim, and
(d) is proportionate to that aim.
The same basic structure of human rights limitation conditions migrated to other human rights treaties, such that they “may be generalized to all human rights treaties.”18 In the Inter-American System, for example, the Inter-American Court of Human Rights “applies the principles of legal certainty, procedural equality and proportionality in its interpretations.”19 Unlike the ICCPR and the American Convention, the African Charter on Human and Peoples’ Rights does not contain a limitations clause. The African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights have nevertheless adopted the conditions of legality, necessity and proportionality in the interpretation of Charter Article 27, drawing significantly from the jurisprudence of peer regional courts and tribunals, as well as the Universal Declaration on Human Rights (UDHR) and the ICCPR.20
The application of these principles is not restricted to civil and political rights. The International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 4, for example, allows for limitations “as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” The ICESCR travaux préparatoires capture the drafters’ intent to prevent arbitrary interferences, so that “States would not be free to limit the rights arbitrarily in any manner they might choose.”21 The Limburg Principles on the Implementation of the ICESCR, unanimously adopted in 1986 by a group of distinguished experts, 22 like the Siracusa Principles, emphasize the conditions of legality, necessity and proportionality, and the requirement of recourse to effective remedies, in relation to the application of limitations to Covenant rights.23
The following section provides a brief overview of the functions of these conditions and safeguards in the traditions of national systems and international law, chiefly as a bulwark against arbitrary power. The remainder of this document provides further clarity and guidance on the application of the conditions in practice.
II. THE CONCEPT OF ARBITRARINESS
The human rights tradition in international law is often considered to have emerged after 1948, with the adoption of the UDHR and a period of codification of human right treaty law thereafter. Prior to this period in the development of international law, however (and in some cases centuries prior) concepts of individual rights and even universal rights attached to revolutionary contests against tyranny,24 and were marshalled in support of state sovereignty against the exercise of unconstrained, arbitrary power.25
Defense against arbitrariness and unfettered discretion likewise informed the inclusion of conditions and safeguards provisions in modern human rights treaties as well as precursor and complementary measures in national traditions. Further, treaty bodies and international courts have read in additional measures of protection against arbitrary state action in their interpretation of treaty language on legality, such as requirements that limitations be “provided for by law” or “prescribed by law” (e.g., ICCPR Articles 12(3), 18(3), 19(3), and 22(2)). The IACtHR, for instance, has well-developed jurisprudence concerning the principle of legality in relation to arbitrary actions. In an advisory opinion on the word “laws” in Article 30 of the American Convention (scope of restrictions), the Court states:
“In order to guarantee human rights, it is therefore essential that state actions affecting basic rights not be left to the discretion of the government but, rather, that they be surrounded by a set of guarantees designed to ensure that the inviolable attributes of the individual not be impaired. Perhaps the most important of these guarantees is that restrictions to basic rights only be established by a law passed by the Legislature in accordance with the Constitution. Such a procedure not only clothes these acts with the assent of the people through its representatives, but also allows minority groups to express their disagreement, propose different initiatives, participate in the shaping of the political will, or influence public opinion so as to prevent the majority from acting arbitrarily. Although it is true that this procedure does not always prevent a law passed by the Legislature from being in violation of human rights—a possibility that underlines the need for some system of subsequent control—there can be no doubt that it is an important obstacle to the arbitrary exercise of power.”26
The HRC has also frequently emphasized in General Comments that the expression “arbitrary interference” (e.g., Article 17(1) on the right to privacy) “can also extend to interference provided for under the law.” In the Committee’s view, “[t]he introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.”27 In another General Comment (on liberty and security of person), the Committee reiterated that “[t]he notion of ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.”28 In its General Comment on freedoms of opinion and expression, the Committee again returned to the central importance of limitations provisions in constraining the arbitrary exercise of state power: “A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.”29
III. THE APPLICATION OF CONDITIONS
The following is a general overview that clarifies the basic mechanics and contours of the human rights limitation conditions of legality, necessity, and proportionality introduced above.
The HRC’s General Comments repeatedly reference these conditions using similar formulations for different Covenant rights:
Nature of obligation. “Where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.”30
Right to peacefully assemble. “Authorities must be able to show that any restrictions meet the requirement of legality, and are also both necessary for and proportionate to at least one of the permissible grounds for restrictions enumerated in article 21, as discussed below. Where this onus is not met, article 21 is violated.”31
Freedom of opinion and expression. No restrictions are permitted under the Covenant to freedom of opinion.32 “However, when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself.”33 “Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality.”34
The section is structured to be as inclusive as possible of alternative formulations of these conditions, while adhering to the basic common architecture present in any formulation. It therefore includes three sub-sections: legality, legitimacy (a measure responds to a legitimate and pressing need), and proportionality (encompassing the sub-condition of necessity). Thus, two forms of “necessity” as a condition for lawful human rights limitations are considered.
The test is cumulative regardless of how it is structured: all elements must be satisfied. The counterterrorism context is relevant here, due to analogous concerns that many States over-criminalize, adopting vague and overbroad criminal law provisions, for example targeting “encouragement of terrorism” or “glorifying terrorism.” As former Special Rapporteur on human rights and counter-terrorism Martin Scheinin observes, the HRC’s approach in such cases has been to “insist[]” upon the applicability of Article 19(3) to determine the legitimacy and lawfulness of such restrictions and/or their application in practice, and that “any restrictions must meet the cumulative conditions of Article 19(3).”35
This section ends with a brief note on the burden of proof.
A. Legality
As discussed above, legality is an antidote to arbitrariness. The Siracusa Principles state that the condition (the term “prescribed by law”) requires transparency and accessibility to all, as well as “adequate safeguards and effective remedies [] provided by law against illegal or abusive imposition or application of limitations on human rights.”36 This interpretation is followed by the HRC, the CESCR and the European Court of Human Rights (ECtHR), among others, each of which have clarified that the condition of legality implies that anchoring laws will have certain material qualities; that their formal existence is not enough to satisfy the test.37
The ECtHR has an especially rich jurisprudence concerning the “quality of the law” as a facet of legality, which requires that measures should be “accessible to the person concerned and foreseeable as to its effects.” In Rotaru v. Romania, the ECtHR Grand Chamber explained the importance of the foreseeability element “with regard to secret surveillance” (citing Malone v. United Kingdom):
The phrase [] implies . . . that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 . . . Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident.
[…] Since the implementation in practice of measures of secret surveillance of communication is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.”38
With respect to the right to privacy, the HRC has also afforded special attention to the requirements of legality associated with the actions of executive agencies and transparency as to their precise powers:
“It is also indispensable to have information on the authorities which are entitled to exercise control over such interference with strict regard for the law, and to know in what manner and through which organs persons concerned may complain of a violation of the right provided for in article 17 of the Covenant. States should in their reports make clear the extent to which actual practice conforms to the law. State party reports should also contain information on complaints lodged in respect of arbitrary or unlawful interference, and the number of any findings in that regard, as well as the remedies provided in such cases.”39
The General Comment goes on to state, “[e]ven with regard to interferences that conform to the Covenant, relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorized interference must be made only by the authority designated under the law, and on a case‑by‑case basis.”40 In its most recent General Comment, on peaceful assembly (2020), the HRC also directly addressed the importance of legality in regulating information-gathering and surveillance:
“Any information gathering, whether by public or private entities, including through surveillance or the interception of communications, and the way in which data are collected, shared, retained and accessed, must strictly conform to applicable international standards, including on the right to privacy, and may never be aimed at intimidating or harassing participants or would-be participants in assemblies. Such practices should be regulated by appropriate and publicly accessible domestic legal frameworks that are compatible with international standards and subject to scrutiny by the courts.”41
The African Court and Commission have both adopted similar constructions of the legality condition to that of the ECtHR, stating that “domestic laws on which restrictions to rights and freedoms are grounded must be sufficiently clear, foreseeable and compatible with the purpose of the Charter and international human rights conventions”42 thus “to enable an individual to adapt [their] conduct to the Rules and to enable those in charge of applying them to determine”43 what constitutes a lawful restriction.
While the Inter-American Court has required that restrictions be adopted through a parliamentary process, other tribunals apply more flexibility as to the process of establishing the law in question. The HRC states that “[r]estrictions must [] be imposed through law or administrative decisions based on law. The laws in question must be sufficiently precise to allow members of society to decide how to regulate their conduct and may not confer unfettered or sweeping discretion on those charged with their enforcement.”44
B. Legitimacy (Including “Necessity” in Response to a Pressing Need)
This requirement is sometimes treated as part of the proportionality test.45 In the context of international human rights treaties, which may set out specific legitimate aims applicable for the purposes of a given provision, or generally for a set of rights under a Convention, significant guidance exists as to the construction of such clauses. The Siracusa Principles and the Limburg Principles both contain interpretive principles on specific limitation clauses such as “public safety” or “national security.” “National security,” for example, will only be legitimately invoked “to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.”46
Requiring a legitimate purpose allows for scrutiny of “the motives behind particular restrictions.”47 While the ECtHR is more deferential to States in scrutinizing the legitimacy of a restriction’s aims, other national courts and regional bodies have developed stronger standards. Under the Oakes test developed by the Canadian Supreme Court and influential in many other jurisdictions, the government must prove that the proffered aim is ”of sufficient importance to warrant overriding a constitutionally protected right or freedom.”48 The travaux préparatoires to the ICESCR suggest that the drafters sought to avoid references to specific categories of legitimate purposes behind the limitation of rights, to thereby limit the reflexive resort to such justifications and ensure even scrutiny of the stated purpose behind a restrictive measure.49 The African Commission has also limited the scope of available legitimate aims to those articulated in Article 27(2) of the African Charter: the rights of others, collective security, morality and common interest.”
C. Proportionality (Including the “Necessity” Sub-Condition)
The proportionality condition enjoys widespread recognition as a cornerstone of human rights law and constitutional law in many countries.50 It is applied in civil and common law systems51 and recognized by many experts as a general principle of international law.52 Comparative constitutional law scholars have also noted that proportionality review in rights limitation can serve a harmonizing function as it is well-adapted to comparative constitutional analysis.53
The concept of proportionality is also used to assess the lawfulness of rights derogations in time of emergency.54 It also exists in jus ad bellum and international humanitarian law (as does the principle of necessity). These areas are not covered here but should be considered as complementary in the protection of human rights, and not mutually exclusive.
This section further examines three interconnected sub-conditions within the broader sense of the proportionality principle:
Suitability (or the “appropriateness” or “rational connection” between the legitimate aim and the chosen measure),
Necessity (the measure must not exceed what is strictly necessary, or the least restrictive means, to achieve the legitimate aim), and
Proportionality stricto sensu (whether the measure strikes a fair balance between the right infringed and the legitimate purpose).
It is often also stressed that the proportionality principle ensures that limitations facilitate the right in question and protect its core, although some courts and monitoring bodies, including the ECtHR and the HRC, examine the latter (non-destruction of the essence of the right) as a separate question to the proportionality condition.
The HRC has also emphasized that the principle of proportionality is an important safeguard against overbreadth, which, left unaddressed, can lead to arbitrary and discriminatory state action. The Committee has used the following formulation to capture the requirements of the proportionality principle: rights restricting measures “must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected…The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law.”55
Restrictions must therefore be necessary and proportionate in the context of a society based on democracy, the rule of law, political pluralism, and human rights, as opposed to being merely reasonable or expedient.56
- Suitability (or rational connection)
Suitability refers to the rational fit or nexus between the measure adopted and its stated purpose. Whereas some courts do not apply a searching review of the appropriateness or rational link between means and ends, when the purpose of a given measure is especially broad judges may struggle to find such a connection. This has been the case in respect of measures anchoring large-scale digital technology projects.
In a recent case, Julian J. Robinson v. Attorney General, involving a national digital identification system, the Jamaican Supreme Court struck down the legislative framework in part because it purported to establish a nationwide digital identification system by requiring all persons to use the system as the exclusive and mandatory method of verifying identity.57 There, the Court applied more careful scrutiny to the objective, which must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom.” “The standard must be high,” according to the Robinson Court, “in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain protection.”58 The Court also emphasized that the means chosen “must be carefully designed to achieve the objective in question.”59
- Necessity (least restrictive means)
“Restrictions must be ‘necessary’ for a legitimate purpose.”60 The necessity requirement shifts the focus entirely to the means chosen to achieve the purpose. The stated aim is assumed to be legitimate for the purposes of applying this condition (legitimacy will already have been reviewed (legitimacy) and considered in relation to the means chosen (suitability).61 Importantly, in most formulations of the necessity test, including under the ICCPR, restrictions must be “the least intrusive among the measures that might serve the relevant protective function.”62
In the Makwanyane case, the South African Supreme Court, applying a proportionality test purposively informed by international and comparative practice, struck down the country’s death penalty statute as disproportionate, citing the state’s failure to show that the aims of the law could not have been achieve through life imprisonment.63 The case is a stark illustration of the calibration logic of the necessity requirement; the test does not discard the purpose, but imposes a minimum impairment factor. In the words of former Israeli Supreme Court Justice Barak, “[a]t times, even the ‘smallest’ limitation may be harsh.”64
The Siracusa Principles also reflect the centrality of the “least restrictive means” analysis to the proportionality condition: “In applying a limitation, a state shall use no more restrictive means than are required for the achievement of the purpose of the limitation.”65 The African Commission66 and the Inter-American Court67 have both echoed the approach, requiring authorities to demonstrate the absence of less restrictive alternative measures in rights limitation cases.
- Proportionality stricto sensu (balancing)
The final element of proportionality is balancing, or proportionality in a narrower, and often more normative, sense of considering the purpose of the law in relation to the importance of the right and the severity of the restriction. The test thus moves away from a comparison of the means and the ends to weigh the relative benefits and costs. One legal scholar distinguishes proportionality stricto sensu in the following terms:
“It is vital to realize that the test of balance has a totally different function from the test of necessity. The test of necessity rules out inefficient human rights limitations. It filters out cases in which the same level of realization of a legitimate aim could be achieved at less cost to rights. By contrast, the test of balance is strongly evaluative. It asks whether the combination of certain levels of rights-enjoyment combined with the achievement of other interests is good or acceptable.”68
In regional and international human rights tribunals, the additional protection afforded to an inviolable “core” or “essence” of rights informs the approach to balancing. The African Commission has stated that the balancing inquiry upholds this protective insurance against the restrictions that, even if objectively important in their aims and benefits, render the right “illusory” or vitiated.69
D. Burden of Proof
The HRC has clarified that for ICCPR obligations, the responsible authorities bear the burden of justifying restrictions70 by producing evidence with individualized specificity to the facts of a particular law, decision, or action.71 This position is in keeping with Article 12 of the Siracusa Principles: the “burden of justifying a limitation upon a right guaranteed under the Covenant lies with the state.” In many courts and tribunals, an initial, often minimal or prima facie, burden rests with the claimant asserting the limitation.72 Thereafter, “the party seeking to uphold the limitation” bears the onus of proving that the limitation is justified.73
IV. THE RIGHT TO AN EFFECTIVE REMEDY
The right to an effective remedy is considered a cornerstone human rights safeguard and has been recognized in numerous international legal instruments, and by major international and regional human rights courts and tribunals. The UDHR Article 8 provides that “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” The ICCPR recognizes the right to an effective remedy in Article 2 (general obligations) and in Articles 9(5) and 14(6) (covering specific forms of abuse of power via unlawful arrest, detention or conviction). The 1985 UN General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, references justice for victims who suffer “substantial impairment of their fundamental rights through abuse of power.” Paragraph 21 calls for vigilance on the part of States to ensure access to justice for victims of new forms of abuse of power:
“States should periodically review existing legislation and practices to ensure their responsiveness to changing circumstances, should enact and enforce, if necessary, legislation proscribing acts that constitute serious abuses of political or economic power, as well as promoting policies and mechanisms for the prevention of such acts, and should develop and make readily available appropriate rights and remedies for victims of such acts.”
The ECtHR has drawn a close relation between effective remedies and the rule of law: “The rule of law implies, inter alia, that interference by the executive authorities with an individual’s rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and proper procedure.”74
The IACtHR has a developed a strong tradition of jurisprudence as a remedy of recourse where domestic remedies are exhausted and in upholding the right to an effective remedy at national level. The American Convention, Article 25, contains an express obligation to provide effective judicial remedies to victims of human rights violations. Remedies must afford due process of law (Art. 8 (1)), as part of the “general obligation of such States to guarantee the free and full exercise of the rights recognized by the convention to all persons subject to their jurisdiction.”75
CONCLUSION
The foregoing overview is designed to inform a more thorough appreciation of the meaning of the full protection of human rights, especially when the aim of adherence to human rights law is invoked in the recitals and operative clauses of the draft cybercrime treaty. Understanding full protection requires careful attention to the conditions and safeguards that attach whenever human rights are limited. Human rights limitation is not an unusual or unexpected occurrence – the law has developed in line with this reality and in the full cognizance that the greater risks lie in abuse of discretion and the establishment of arbitrary power. These eventualities flow from a failure to constrain human rights limitation effectively. A lack of fidelity to the underpinnings of human rights protection may jeopardize any good faith effort to see that rights are respected in pursuit of the treaty’s objectives.
Temple University Institute for Law, Innovation & Technology (iLIT)1
April 2023
