Text box 4.1 breaks this process down into basic elements so as to offer guidance for how
a filtering state might avoid violating international law even as it limits freedom of expression. It
is important to remember, however, that a state’s compliance with these requirements is necessary, but not in itself sufficient, to satisfy the state’s obligations. To be compliant, the measures must be actually necessary for the purposes the state asserts that they are necessary
for—the state’s bare assertion that this is the case will not be sufficient.
None of the filtering regimes covered in studies by the OpenNet Initiative appear to
have been crafted to meet international commitments on freedom of expression. As states
grow more aware of their obligations, it will be interesting to see whether they modify their filtering practices to honor these commitments. In the meantime, it seems the international system is struggling with extensive filtering habits that are out of proportion with legitimate
objectives.
When considered in light of technology’s tendency to act as a sort of ‘‘law’’ that can govern
society,
27 requirements that filtering be provided in law and be necessary are marked with an
extra nuance. Surely the idea behind these requirements is to promote precision, to allow people to know what measures apply, and to promote government accountability to the public.
Does it not follow that the technologies used in filtering should be precise, transparent, and
justifiable as well?
Problem of Enforcement
Having examined obligations that states have agreed upon at the international level, and having briefly explored how these obligations mesh with filtering practices, it is logical next to
examine the machinery by which these obligations can be enforced. It is here that the weaknesses of the international system become apparent.
The international human rights instruments rely largely on states themselves to implement
their commitments at a domestic level. International enforcement also falls on states themselves. To this end, the ICCPR contains express obligations on states to ensure that this
occurs (Article 2).
However, due to political realities, such guarantees are of little use unless they are accompanied by sanctions for violations. It is here that the UNHRC has the potential to play a critical
role.
Monitoring under the ICCPR
The ICCPR requires states, upon request by the UNHRC, to provide a report on their compliance with obligations under the treaty. According to the rules of the Committee, a state must
prepare a written report, which the UNHRC then examines. State representatives are usually
present to answer questions, and the UNHRC also hears from relevant NGOs and other civil
society organizations. At the conclusion of the process, the UNHRC issues a report containing
84
Mary Rundle and Malcolm Birdling
a filtering state might avoid violating international law even as it limits freedom of expression. It
is important to remember, however, that a state’s compliance with these requirements is necessary, but not in itself sufficient, to satisfy the state’s obligations. To be compliant, the measures must be actually necessary for the purposes the state asserts that they are necessary
for—the state’s bare assertion that this is the case will not be sufficient.
None of the filtering regimes covered in studies by the OpenNet Initiative appear to
have been crafted to meet international commitments on freedom of expression. As states
grow more aware of their obligations, it will be interesting to see whether they modify their filtering practices to honor these commitments. In the meantime, it seems the international system is struggling with extensive filtering habits that are out of proportion with legitimate
objectives.
When considered in light of technology’s tendency to act as a sort of ‘‘law’’ that can govern
society,
27 requirements that filtering be provided in law and be necessary are marked with an
extra nuance. Surely the idea behind these requirements is to promote precision, to allow people to know what measures apply, and to promote government accountability to the public.
Does it not follow that the technologies used in filtering should be precise, transparent, and
justifiable as well?
Problem of Enforcement
Having examined obligations that states have agreed upon at the international level, and having briefly explored how these obligations mesh with filtering practices, it is logical next to
examine the machinery by which these obligations can be enforced. It is here that the weaknesses of the international system become apparent.
The international human rights instruments rely largely on states themselves to implement
their commitments at a domestic level. International enforcement also falls on states themselves. To this end, the ICCPR contains express obligations on states to ensure that this
occurs (Article 2).
However, due to political realities, such guarantees are of little use unless they are accompanied by sanctions for violations. It is here that the UNHRC has the potential to play a critical
role.
Monitoring under the ICCPR
The ICCPR requires states, upon request by the UNHRC, to provide a report on their compliance with obligations under the treaty. According to the rules of the Committee, a state must
prepare a written report, which the UNHRC then examines. State representatives are usually
present to answer questions, and the UNHRC also hears from relevant NGOs and other civil
society organizations. At the conclusion of the process, the UNHRC issues a report containing
84
Mary Rundle and Malcolm Birdling