[IRP] New DRAFT Version 1.1; comments Benedek (1)

Benedek, Wolfgang wolfgang.benedek@uni-graz.at wolfgang.benedek
Mon Jan 17 12:18:28 EET 2011

Dear Dixie, dear Lisa,

sorry for the delay of my comments due to many obligations. I also can only give you a first set of comments, because I am not yet through with the whole text. First I would like to thank You for the good work done, which brought substantial improvements.

With regard to general questions I would keep the title of the Charter, because it is clear and short. With regard to the structure I think the new preamble looks good and the explanatory document before helps to understand the basic ideas. However, I have not understood what is meant by three sections, in particular a final section which should explain the legal status of the provisions is new to me and I doubt that this would make sense.

In describing the purpose of the charter I would not speak only of applying but also "interpreting" existing universal human rights standards.

Regarding to those who think that the ordering of the articles could suggest a new hierarchy of human rights I would respond that legally the UDHR does not represent a hierarchy of human rights at all and therefore this argument cannot hold.

Regarding the discussion on limitations I belong to those who believe that it is important to spell out the criteria for limitations, because otherwise a gap in this respect might be misused to set up other criteria. If we look into the practice of international human rights law we can see that the existing of limitation clauses do not encourage policy makers to restrict rights.

With regard to the positioning of access to the internet at the beginning I am in favor, because I agree to the basic role of this right for all other rights in the charter. However, regarding the formulation, it should really say right to access to the internet, as it is written in the title of the right. Regarding the progressive realization the provision suggested in "evolving in line with advance in technological possibilities" appears to me to imprecise leaving everything open and therefore should be give further thought.

Regarding the text in particular in para. 2 of section 1 the right to education has moved to the end of the list of rights from which the right to access is derived. In my view it should appear on the second position after freedom of expression because of its importance.

In para. 3 we should consider whether after the word "necessary" we should add "in a democratic society", which is not the general UN standard, but we should be aspirational as well.

There is a general issue regarding the presentation of the rights which we need to discuss in principle. It refers to the explanatory text in the beginning of certain rights. This makes the text much longer and takes a lot of force from the articles which are now a mixture of explanation of a situation and rights per se, which makes it different from the Universal Declaration on Human Rights and its approach. For example, when it says under a of section 2 certain groups in society systematically have poorer internet access than others, etc. this does normally not belong into a declaration of rights and principles.

In a similar way the introductory texts to several articles like under section 4 "as enshrined in Art. 3 of the UDHR" ... should not belong to the text of a strong declaration. We should spell out rights and principles and not reference other documents.

Some of the language has been changed which also takes away part of the force of the declaration like for example the title in section 6 development through the internet instead of right to development in the internet.

My main concern so far is with freedom of expression which has been changed to an extent that it has lost a lot of its strengths. First, there is the introductory part which refers mainly to freedom of opinion which is not in the title and maybe rightfully so. There is no provision on freedom of expression per se anymore. The title combines freedom of expression and information, the latter being part of the freedom of expression but now the articles in the section start out with the "right to information". This might look systematically correct, but is not the approach of the Universal Declaration. Also small changes in the language have consequences like when it says access to government information under national and international law while the original was according to ...

We had a discussion on the paragraph on limitations on racist speech and freedom from hate speech according to which this might be moved to freedom of expression. However, now it has been deleted altogether in spite of the fact that there is Article 20 of the International Covenant on Civil and Political Rights exactly on this concern which I consider of much importance for the internet. I think that such drastic changes cannot be make without a proper discussion in the community. In any case it is a loss for the charter which I cannot accept.

Let me stop here for the time being and I will write again with more comments.

With best regards, your sincerely,

Wolfgang Benedek

Univ.-Prof. Dr. Wolfgang Benedek
Institute for International Law and International Relations
University of Graz
Universit?tsstra?e 15, A4
A-8010 Graz
Tel.: +43/316/380/3411
Fax: +43/316/380/9455

Von: irp-bounces at lists.internetrightsandprinciples.org [mailto:irp-bounces at lists.internetrightsandprinciples.org] Im Auftrag von Dixie Hawtin
Gesendet: Dienstag, 21. Dezember 2010 17:16
An: 'IRP'
Betreff: [IRP] New DRAFT Version 1.1 taking on board comments

Hi all,

At the following link you will find the new DRAFT Version 1.1 taking into account the illuminating discussions that have been taking place over the past couple of months: http://www.freedomofexpression.org.uk/resources/version+1+1+draft

The debates have been quite hasty and at times hard to keep up with: this is a chance for everyone who would like to contribute to Version 1.1 to do so before it is finalized. PLEASE SEND IN ANY COMMENTS BY JANUARY 8TH. Then, using those comments, a final version 1.1 will be released for consultation!

A word of caution: I have not been able to incorporate every point, especially where there are strongly conflicting views or where major changes have been suggested without substantial support from the wider Coalition. However, Version 1.1 does not need to be perfect, just good enough to take outside of the Coalition. So, please do look through this Version and if there are things which you think must URGENTLY be changed before we finalize Version 1.1, please say so. If there are things that you want to change but not necessarily in time for Version 1.1, please do still contribute these thoughts as they will inform the consultations.

In the interests of not writing a giant essay, here are just a couple of points which I wanted to highlight:
*Blocking and filtering: this was meant to be looked at in a final conference call but unfortunately we ran out of time. I have tried to take on board people's concerns, however I know the language that I came up with is far from great, so if anyone can clarify the meaning and language of this provision that would be very helpful indeed.
*The sections on "Human Dignity" and "Equality before the law" have been removed because they contained nothing except a repetition of the relevant UDHR right, and so they were redundant and looked odd. Let me know if you disagree. I do however think that human dignity is a relevant concept. Perhaps we could put a clause about human dignity in the Preamble?

Furthermore, at the link above you will also find a document containing FAQs about the Charter. This is an attempt to capture what the Charter is and explain it in an easily communicable way for use both inside and outside of the Coalition. If you have time to have a look at this document too then please do, although if you only have time to read one, please choose the Charter.

I wish you all very happy holidays!
Dixie Hawtin
Researcher Global Partners and Associates
338 City Road, London, EC1V 2PY, UK
Office: + 44 207 239 8251     Mobile: +44 7769 181 556
dixie at global-partners.co.uk<mailto:lisa at global-partners.co.uk>  www.global-partners.co.uk<http://www.global-partners.co.uk/>

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