The Human Rights Council passed a significant resolution late last month reaffirming the importance of protecting and promoting human rights on the internet. The resolution, as expected, faced resistance from some governments, but ultimately passed by consensus. This is the simple version of the story.
Due to inaccurate media reports, and the rather complex political dynamics of the Council, there has been quite a bit of misunderstanding about what actually happened. On the one hand, some articles have falsely reported that the resolution went to a vote, and that democracies like India and South Africa voted against key provisions condemning intentional shutting down of communications networks. On the other hand, observers who noted the false reports have questioned how significant a threat the amendments led by China and Russia actually posed to the resolution, and encouraged civil society organisations that supported an open letter urging HRC members to reject the proposed amendments to explain their rationale for doing so.
As an organisation that opposed the failed amendments, and a signatory of the letter in question, here is APC’s position. But first, some clarity on what actually happened at the HRC.
If the resolution passed by consensus, why was there a vote?
There are two ways that the Human Rights Council, a body composed of 47 member states, adopts resolutions: by consensus (the preferred option) or by a vote. However, once a resolution is tabled, member states dissatisfied with the text can propose amendments. The state, or group of states, proposing the resolution may offer oral revisions when they present the text for adoption, which seek to integrate aspects of the proposed amendments from other states. At this point the states proposing the amendments may withdraw them, or the states proposing the amendments may call for a vote on the amendments, one at a time. If the vote goes in favour of an amendment, it is integrated into the resolution; if it is voted down, then the resolution proceeds as it was initially presented. At this point a state can call a vote on the resolution as a whole, or let it proceed for adoption by consensus, often taking the floor to express its views on the resolution. After the resolution is adopted, a state may choose to dissociate itself from the resolution to express its disagreement with the text without triggering a vote.
In the case of the internet resolution, the states proposing the resolution offered oral revisions seeking to address two of the four amendments proposed. The resolution with oral revisions went on to be passed by consensus, with more than 70 states as co-sponsors. Therefore, any media reports that indicate a state voted against the resolution as a whole are false. China, however, dissociated from two paragraphs concerning the amendments contained in L.87 (see below).
Who did what, when?
A core group of states, led by Sweden and including Brazil, Nigeria, Tunisia, Turkey and the United States, proposed the resolution in question. It is the third such HRC resolution on the promotion, protection and enjoyment of human rights on the internet. Building on the HRC’s landmark 2012 resolution, which affirmed that the same rights that people have offline must also be protected online, and the follow-up resolution in 2014, this new resolution addresses some of today’s most pressing issues. It calls for bridging the gender digital divide, condemns intentional disruptions to internet access, calls for ending impunity for attacks on people for exercising their rights online, and encourages improving access to the internet for persons with disabilities.
After the resolution was tabled, China and Russia proposed four amendments:
- Amendment L.85 Add a reference to an HRC resolution on combating sexual exploitation of children through use of ICTs.
- Amendment L.86 Delete reference to the Universal Declaration of Human Rights (UDHR) and Article 19 International Covenant on Civil and Political Rights (ICCPR) language on the application of the right to freedom of expression “regardless of frontiers” and “through any media of one’s choice”.
- Amendment L.87 Delete references to a “human rights based approach” in providing and expanding access to the Internet, including in relation to bridging various forms of digital divide. (NOTE: Cuba, Iran, South Africa and Venezuela joined as co-sponsors of this amendment.)
- Amendment L.88 Adding additional language to the preamble concerning “hate speech” online.
Nigeria, speaking on behalf of the core group, noted that because the amendments were proposed after three open informal consultations and continued discussions, and not withdrawn despite the oral revisions, the core group considered them “unfriendly” and urged all Council members to oppose them. The proponents of the amendments called for a vote. See the results, tweeted by ARTICLE19:
- L.85 withdrawn because oral amendments offered by the core group addressed this.
- L.86 17-Yes (Bangladesh, Bolivia, Burundi, China, Cuba, Congo, Ecuador, India, Indonesia, Kenya, Qatar, Russian Federation, Saudi Arabia, South Africa, United Arab Emirates, Venezuela, Vietnam); 25-No (Albania, Belgium, Botswana, El Salvador, France, Georgia, Germany, Ghana, Latvia, Maldives, Mexico, Mongolia, Morocco, Namibia, Netherlands, Nigeria, Panama, Paraguay, Philippines, Portugal, Republic of Korea, Slovenia, Switzerland, Macedonia, UK); 5-Abstain (Algeria, Cote d’Ivoire, Ethiopia, Kyrgyzstan, Togo)
- L.87 15-Yes (Bolivia Burundi, China, Cuba, Ecuador, India, Indonesia, Kyrgyzstan, Qatar, Russian Federation, Saudi Arabia, South Africa, United Arab Emirates, Venezuela, Vietnam); 23-No (Albania, Belgium, Botswana, El Salvador, France, Georgia, Germany, Ghana, Kenya, Latvia, Maldives, Mexico, Morocco, Netherlands, Nigeria, Panama, Paraguay, Portugal, Republic of Korea, Slovenia, Switzerland, Macedonia, UK); 9-Abstain (Algeria, Bangladesh, Congo, Cote d’Ivoire, Ethiopia, Mongolia, Namibia, Philippines, Togo)
- L.88 18-Yes; 24-No; 5-Abstain (full record of state’s votes not yet available)
The amendments didn’t seem so bad, why have they been called “hostile”?
Observers have questioned why the amendments have been referred to by some human rights groups as “hostile”, indicating that this type of characterisation could have encouraged inaccurate and hyperbolic reporting on the issue. The term “hostile amendment” is commonly used at the HRC to refer to an amendment that has been introduced after open informal consultations and after the text has been tabled. In some cases hostile amendments aim to strip a resolution of its essential purpose, as was the case with the resolution on human rights defenders at the March HRC session, which faced 30 hostile amendments proposed by China, Cuba, Egypt, Pakistan and Russia, including amendments that proposed removing the term human rights defenders. The amendments proposed by China and Russia for the internet resolution were rather mild in comparison. Regardless, they aimed to dilute the text and could be viewed as part of a broader strategy to call a vote on the resolution.
Why did we oppose the amendments?
- L.86: This amendment would have removed agreed text from the past two previous consensus HRC resolutions on the internet and human rights. More importantly, it would remove the language from common Article 19 of the UDHR and ICCPR, “which is applicable regardless of frontiers and through any media of one’s choice”. These elements are central to the Human Rights Committee’s interpretation of the right to freedom of expression applying online. L.86 proposed additional references to the right to privacy – something we would ordinarily welcome- but since they would come at the expense of freedom of expression, and since this resolution has more references to privacy (five in total) than the previous two internet resolutions, the L.86 amendment overall would serve to dilute the resolution.
- L.87: Opposition to the original “human rights based approach” included criticism that it was vague and that it does not account for issues such as technology transfers, development, and security concerns. However, the alternative proposed – “comprehensive and integrated approach” – is equally vague. In our view, it is rather clear what a human rights-based approach to providing and expanding access to the internet means: developing and implementing policies that enable everyone in society to access the benefits of the internet so that they are able to exercise their human rights online and offline. This requires addressing economic, social and cultural barriers to access, facilitating access to information and knowledge, and respecting the right to privacy so that there is trust in the technology. It is also important to remember that in the context of the HRC, vague language is not necessarily a bad thing. The HRC is a political body that reaches consensus with broad statements that over time are clarified and made more specific. For example, the first HRC resolution on the internet in 2012 did little more than affirm that human rights should be protected online. However, consensus on this fundamental principle paved the way for more intricate work on internet rights at the HRC, such as on privacy in the digital age and on encryption and anonymity. The HRC could and should consider in more detail what a human rights-based approach to internet access means. This is something the Special Rapporteurs of the HRC should be encouraged to take, as well the forthcoming report of the High Commissioner for Human Rights on ways to bridge the gender digital divide from a human rights perspective, which this resolution called for. Finally, removing the text would send a negative signal that efforts to expand access do not need to be human rights-based. Taking a non-human rights-based approach to expanding internet access can widen inequalities in society and subject people to indiscriminate surveillance, among other harms.
- L.88 Hate speech in the online environment is certainly a pressing and serious issue, and while the language proposed is not objectionable, it was also not necessary as it duplicated, in narrower terms, existing language in the draft resolution stressing the importance of promoting tolerance and dialogue in combating “advocacy of hatred that constitutes incitement to discrimination or violence on the Internet”. Given that there is a risk that it could have been used to justify content control and the issue was already covered in the resolution in a more positive framing, in our view the resolution was better without the amendment.
Why does this matter at all?
Beyond the content of the amendments themselves, it is important that efforts to dilute this resolution be viewed in the context of the broader HRC dynamics. In addition to the human rights defenders resolution from the March session, a resolution on civil society space at the June session faced 15 hostile amendments from Russia, South Africa, China, Cuba and Egypt and the whole resolution ultimately went to a vote. Also at this session, a resolution to create a new mandate on protection against violence and discrimination based on sexual orientation and gender identity faced 11 hostile amendments led by Russia and Pakistan (on behalf of the OIC except for Albania), four of which were adopted, and the whole resolution eventually went to a vote.
This demonstrates the very real possibility that the proponents of the amendments could have called for a vote on the resolution. This would have been a huge blow, because until now, the UN has spoken with one voice with respect to the protection and promotion of human rights and the internet. To break this consensus would mean some states saying that they don’t accept, for example, that internet shut-downs are a violation of human rights law. Or they could dismiss the forthcoming report from the High Commissioner for Human Rights on bridging the gender digital divide because they did not support the resolution that called for it. While differences in viewpoints on the proposed amendments are understandable, in our view it was critical at a tactical level to oppose amendments aimed at diluting the text and challenging consensus. Though the resolution is non-binding, it can be a useful tool for advocates looking to hold their governments to account for human rights violations that this resolution condemns, and a positive step in contributing to norms around rights-respecting internet policy.
See also: “How will candidates advance internet rights at the Human Rights Council?”:https://www.apc.org/en/node/21838/“https://www.apc.org/en/blog/how-will….
Deborah Brown is APC’s Global Advocacy Lead. Before joining APC, Deborah was a Senior Policy Analyst for Access, where she focused on the intersection of internet governance policy and human rights. Previously, she has worked with the United Nations Foundation/UN Association of the USA, the National Democratic Institute, and the International Foundation for Electoral Systems. Deborah received her master’s degree from Georgetown University in Democracy and Governance and Arab Studies, and her bachelor’s degree from Barnard College in Political Science and Human Rights. Follow her on Twitter, email her at deborah@apc.org .