tiative, the following are party to the Optional Protocol: Algeria, Azerbaijan, Belarus, Kyrgyzstan, Libya, Moldova, Nepal, the Russian Federation, South Korea, Tajikistan, Turkmenistan,
Ukraine, Uzbekistan, and Venezuela.
While the number of state parties may give the impression of a large degree of support for
the Optional Protocol, and while in many cases state parties comply with recommendations,
Committee views that are issued under this instrument are often outright ignored by errant
states. Two states (Jamaica and Trinidad and Tobago) that have frequently found themselves
on the receiving end of adverse views from the UNHRC have denounced the Optional Protocol altogether.
31 In the absence of stronger enforcement powers, a decision to flout the views
issued by the UNHRC may simply be a political calculation.
Moreover, the Optional Protocol expressly requires that a complaint come from an individual victim. This limits the ability of NGOs or other representative groups to challenge state
practices in the abstract. It would not be possible, therefore, for a group such as Amnesty International to challenge a state’s filtering practices before the Committee—the challenge
would have to come from an affected individual. This requirement poses problems, especially
in light of the fact that in several documented cases individual petitioners faced further persecution from their governments for having exercised their right to petition.
32
Finally, the limitations of the U.N. system already noted have a constraining effect on the
ability of the Committee to conduct thorough analyses of claims brought under the Optional
Protocol.
Overall, then, the Optional Protocol mechanism provides a good way for individuals to hold
some states to account for incursions on the right to freedom of expression. For Internet filtering policies, it is theoretically possible for provisions of the ICCPR and the Optional Protocol to
have significant effect. However, given the practical difficulties mentioned here, it is doubtful
that this treaty represents an adequate means for deterring and punishing states that oppressively filter Internet content.
The Overall Ineffectiveness of International Law
To summarize: States cannot claim that their obligations under international law surrounding
Internet filtering are unclear. To the contrary, the obligations are quite clear. Comprehensive
filtering of Internet content amounts to a violation of the broadly conceived right to freedom
of expression. For filtering to be permissible under the ICCPR, measures must be grounded
in specific law and necessary. However, state compliance remains difficult to secure. The
UNHRC affords some possibility for redress, but correction relies to a large extent on the
goodwill and political situation of the state that has violated its commitments. While many
states may refrain from filtering in order to honor freedom of expression (either because they
value this right or because they wish to avoid domestic and international pressure), for errant
states, there is little incentive to comply with international law in this area. In short, the weak
enforcement capabilities of international human-rights institutions send a message that the
Filtering and the International System
87
Ukraine, Uzbekistan, and Venezuela.
While the number of state parties may give the impression of a large degree of support for
the Optional Protocol, and while in many cases state parties comply with recommendations,
Committee views that are issued under this instrument are often outright ignored by errant
states. Two states (Jamaica and Trinidad and Tobago) that have frequently found themselves
on the receiving end of adverse views from the UNHRC have denounced the Optional Protocol altogether.
31 In the absence of stronger enforcement powers, a decision to flout the views
issued by the UNHRC may simply be a political calculation.
Moreover, the Optional Protocol expressly requires that a complaint come from an individual victim. This limits the ability of NGOs or other representative groups to challenge state
practices in the abstract. It would not be possible, therefore, for a group such as Amnesty International to challenge a state’s filtering practices before the Committee—the challenge
would have to come from an affected individual. This requirement poses problems, especially
in light of the fact that in several documented cases individual petitioners faced further persecution from their governments for having exercised their right to petition.
32
Finally, the limitations of the U.N. system already noted have a constraining effect on the
ability of the Committee to conduct thorough analyses of claims brought under the Optional
Protocol.
Overall, then, the Optional Protocol mechanism provides a good way for individuals to hold
some states to account for incursions on the right to freedom of expression. For Internet filtering policies, it is theoretically possible for provisions of the ICCPR and the Optional Protocol to
have significant effect. However, given the practical difficulties mentioned here, it is doubtful
that this treaty represents an adequate means for deterring and punishing states that oppressively filter Internet content.
The Overall Ineffectiveness of International Law
To summarize: States cannot claim that their obligations under international law surrounding
Internet filtering are unclear. To the contrary, the obligations are quite clear. Comprehensive
filtering of Internet content amounts to a violation of the broadly conceived right to freedom
of expression. For filtering to be permissible under the ICCPR, measures must be grounded
in specific law and necessary. However, state compliance remains difficult to secure. The
UNHRC affords some possibility for redress, but correction relies to a large extent on the
goodwill and political situation of the state that has violated its commitments. While many
states may refrain from filtering in order to honor freedom of expression (either because they
value this right or because they wish to avoid domestic and international pressure), for errant
states, there is little incentive to comply with international law in this area. In short, the weak
enforcement capabilities of international human-rights institutions send a message that the
Filtering and the International System
87