Response to “Protecting Rights Online”

by Peter Yu

Let me begin by thanking Opinio Juris and the Yale International Law Journal for hosting this online symposium. In “Protecting Rights Online,” Professor Molly Beutz Land has written a highly interesting article that seeks to bridge the disciplinary and doctrinal divide between the human rights and access to knowledge (A2K) movements. The article is well-written, accessible and provocative. It has made an important contribution to the debate about issues lying at the intersection of human rights and global information governance.

It is particularly refreshing to find Molly staying away from the traditional state-centered, inter-national approach, which is somewhat incomplete and increasingly misleading. Indeed, as shown in her discussion of the A2K movement, there have been many important recent developments at the sub-state and non-state levels. In examining both the human rights and A2K movements, the article successfully captures many of these developments. It paints vividly and realistically the growing dynamism, complexities and messiness in the area of global information governance.

Also of great interest is Molly’s model of “flexible harmonization,” an innovative model that employs “binding but imprecise international norms” (2). Like the “margin of appreciation” doctrine that the European Court of Human Rights has embraced, this model underscores the importance of building flexibility into the international human rights system. It seeks to protect the gains won by human rights activists in the past few decades while at the same time recognizing the difficulty in achieving international consensus in areas that many countries have deemed controversial and highly sensitive.

The flexible harmonization model is practical; it strikes a middle ground by showing appreciation of the different competing interests within the international human rights system as well as the divergent local needs and values. Instead of perpetuating the current state of debate, in which countries, commentators and activists often talk past each other, the model helps move the discussion forward. By enabling different actors to find common grounds, this model helps facilitate a gradual development of international consensus, starting from the minimum and irreducible core of the affected rights.

From the standpoint of international development, the model is also badly needed. Today’s global legal order has become highly fragmented and increasingly complex, with issue areas spilling over into each other. As international fora and intergovernmental organizations continue to proliferate, and as players shift opportunistically from one forum to another, many developing countries have been struggling to internalize or further develop these interdependent, yet sometimes competing norms. Molly’s model therefore helps us understand better the interplay of these norms, especially in situations where multiple regimes and both binding and nonbinding norms are involved.

Although I can easily use the entire post to discuss the strengths of this article, I want to devote the rest of my comments to issues raised by the flexible harmonization model. First, while the goal of Molly’s article is admirable, and countries that remain reluctant to strengthen human rights protection no doubt would find her model politically palatable, those who place high values on norms that have yet to achieve sufficient international consensus are unlikely to find her model attractive or satisfactory.

Molly is right that achieving consensus in many of these areas is likely to be very difficult. However, those who conceptualize fundamental rights broadly would question whether the gains obtained through the use of her model would outweigh the costs to the international human rights system, as well as the larger movement, when protection of fundamental rights is compromised. Even worse, norms that *some* countries consider highly controversial are also likely to be norms that other countries consider fundamental. Indeed, these “controversial” norms are likely to be considered important and highly desirable by human rights activists, who are working hard to spread them and get them accepted throughout the international community.

In Molly’s defense, the model anticipates this line of criticism. As she pointed out, “imprecise standards are not necessarily unenforceable, merely differently enforceable” (41). If I read the article correctly, issues such as protection of free speech would still be covered under binding norms, even though these norms may be ambiguous and imprecise and may vary in their implementation. Thus, in theory, the flexible harmonization model would not necessarily undermine the existing international human rights system.
In practice, however, the model may not work as well. Consider the rights to free speech, for example. Thus far, no country has ruled out free speech entirely. Even in countries that control the flow of information heavily, there is always some room for free speech or expression. Thus, the controversy is not really about whether governments fulfill their binding obligations to protect free speech, but how these obligations are to be interpreted and to what extent they have fulfilled those obligations.

For instance, would it be acceptable for governments to restrict the “time, place and manner” in which individual citizens criticize their governments? Would it be sufficient for these criticisms to be made in a heavily-monitored and highly-regulated environment? Could governments impose significant restrictions on free speech rights if they have good-faith beliefs that such speech would cause widespread public panic (even though others may question the reasonableness of those beliefs)?

Unfortunately, the issues raised by these questions are likely to be considered by some to fall on the imprecision side of the model, rather than the binding side. As a result, even though the proposed model may be effective in building international consensus in some areas, the model may threaten to weaken the foundation of the international human rights system in others. Lacking precision, the model may also make monitoring difficult, even though the existing reporting mechanisms arguably may still provide sufficient and useful information to hold governments accountable. Thus, it would be useful to explore further whether additional safeguards need to be built into the system to minimize adverse impact on international human rights protection.

Second, beyond the public health area, one has to wonder whether there are other “success stories” in which various socio-political movements work together effectively to develop a common agenda. Put differently, is Molly overly optimistic about the impact of her model? Would the development of a cross-movement alliance between human rights and A2K advocates lead to stronger protection of individual rights online?

To some extent, the success story about increased access to essential medicines is more the exception than the norm (although most of us certainly hope the reverse is true). The stakes are high for *both* developed and developing countries—whether one focuses on the needless death, pain or suffering of the people affected by the HIV/AIDS pandemic in Africa or South America or the fast-growing healthcare concerns of the poor and the elderly in the United States or Canada. Countries also would incur significant political, economic and social costs if their governments fail to pay attention to this area. If that is not enough, public health-related nongovernmental organizations have been sufficiently mobilized, not to mention the painful lessons they have learned in the past decade, their increasing ability to frame issues politically, and the widespread cross-movement support they have received in both the developed and developing worlds.

Finally, the article may have adopted a more general, but somewhat constraining definition of “harmonization”—perhaps due to its focus on the disconnect between the human rights and A2K movements and perhaps out of analytical convenience. As Molly stated, the article uses the term harmonization “to indicate the establishment of common minimum standards” (9 n.44). However, establishing common minimum standards is only the beginning of an inquiry into the harmonization process. The most challenging question in the harmonization debate is not so much about whether standards should be harmonized, but about what type of harmonization should occur—for example, to what extent should norms be harmonized and in what direction should such harmonization occurs?
While the article focuses primarily on the former, with only a brief discussion of the latter, it is worth devoting more attention to exploring how norms can be flexibly harmonized—perhaps in a follow-up article. For example, should norms be harmonized based on internationally accepted principles or guidelines that are negotiated in a multistakeholder process with sufficient and diverse participation? Should protocols, recommendations or best practices be established? Should harmonization efforts be monitored through the existing reporting mechanisms in the international human rights system? Should harmonization be guided by authoritative—and perhaps nonbinding—interpretations by expert intergovernmental bodies? Or should harmonization be facilitated by technical assistance efforts that are not driven by any built-in agenda?

More importantly, how could one prevent the “flexible harmonization” process from being transformed into a unidirectional shift in which norms adopted by developed countries become binding while other equally important countervailing norms are being slowly eroded through imprecise interpretation or implementation? After all, flexibility can cut both ways. It can both help or *hurt* developing countries and local communities. In fact, if the latter is the more likely outcome, one has to wonder whether these countries and communities would be better off having *less* flexibility while insisting on the introduction or strengthening of countervailing norms (or, in intellectual property speak, maximum standards).

Interestingly—though unsurprisingly—these questions bring us back to where we started—the need for Molly’s article and the important contributions she has made to the debate about human rights and global information governance. While there remain challenging questions about how to implement and further develop her new and interesting model, the flexible harmonization model provides an important starting point for exploring how to maintain balance in the international human rights system and how to bridge the ideological gap between different socio-political movements. For that, I offer her my congratulations. I also invite you to join Molly and I in furthering the fruitful dialogue this article seeks to create.

http://opiniojuris.org/2009/04/13/response-to-protecting-rights-online/

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