[IRP] WG: Charter Commentary

Benedek, Wolfgang wolfgang.benedek@uni-graz.at wolfgang.benedek
Sun Aug 28 21:36:58 EEST 2011

Dear Dixie,

I had a first look at the draft commentary on the Charter and I think it is a useful contribution to our work. It is not an explanatory document on how the articles of the Charter have evolved as it does not give any drafting history and does not refer to the documents like the APC Internet Charter from civil society and others sources which have been used to elaborate the Charter.

It contains, however, a good analysis of international legal sources for the respective articles of the Charter and does shows that those articles are supported by international human rights law and relevant international authoritative statements like the one of the four rapporteurs on freedom of expression and the internet.

I do not have the time presently for a detailed analysis, but I think that the quality generally is high. Therefore, I only would like to make a few short observations: there is a certain contradiction on page 4 when it says that much of the UDHR has arguably attained customary international law status and the last sentence of the same paragraph which concludes that the UDHR has become customary international law. I think this can only be said for its core provisions. I also think that one cannot equal the UDHR and the Joint Declaration of the four rapporteurs of 2011 as it is suggested by the formula on page 3 "another statement cited widely in this commentary ...". Under customary international law, second line, it should read fact instead of fat. With regard to the right to education I think it would be more appropriate to start with Art. 26 UDHR and Art. 13 of the international covenant on economic social and cultural rights rather than with the convention on the rights of the child, which, however, is also relevant in so far as it has a wider membership.

Generally, I also appreciate that regional sources have been used, because it is important to show that relevant material also exists in the various regional systems. However, it is difficult to be comprehensive in this respect, in particular when it comes to the Council of Europe, the documents of which in my view could have been more widely used.

In conclusion, I welcome this contribution to the work on the Charter and I would also encourage the authors to give us their views whether during their work they have got ideas regarding possible improvements of the content and language of the Charter. However, it is not possible in my view to address too technical concerns and to go into too much detail. This, however, raises the question how specific parts of the rights elaborated on can be dealt with from an international law analysis while this law is still emerging and partly does not as yet have an answer to a number of the new issues raised by challenges to human rights in the information society.

Best regards,

Wolfgang Benedek
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