4
Filtering and the International System: A Question
of Commitment
Mary Rundle and Malcolm Birdling
Introduction
This book reflects a certain skepticism about filtering trends. Behind this skepticism is both
an acceptance that freedom of expression (including the right to seek, receive, and impart information and ideas) is a basic human right under international law, and a sense that many
governments’ filtering practices represent an obstruction of this right. To ground these assumptions, this chapter seeks first to set out generally what constitutes international law, to
whom it applies, and in what contexts, and second to consider how these concepts relate to
filtering. At the heart of the matter is the question of if and how legal means can be used
to regulate Internet filtering at an international level to protect freedom of expression.
This chapter introduces several elements in considering filtering from a human rights
perspective—including international law as commitments among state actors, the setting out
of human rights in international law, and filtering as a potential obstruction of the human right
to freedom of expression. This chapter finds that international human rights agreements provide a valuable framework for determining what constitutes permissible and impermissible filtering, but that these instruments fall short on the enforcement end due to widespread filtering
and states’ apparent reluctance to take action against one another. The chapter then turns
to consider domestic approaches for holding private actors accountable internationally, but
notes that these approaches are inadequate on their own. Finally, the chapter points to the
promise of international standards for enabling nonstate actors to prevent broadscale filtering
and thereby facilitate the exercise of freedom of expression.
The Backdrop
The modern international system dates from the Peace of Westphalia (1648),
1 which established the principles of 1) state sovereignty
2 and the right of self-determination; 2) legal equality among states; and 3) nonintervention of states in one another’s internal affairs. In this
system, states are the actors, giving life to international law as they create it together and
agree to be mutually bound by it. As such, international law rests on the consent of sovereign
states.
Filtering and the International System: A Question
of Commitment
Mary Rundle and Malcolm Birdling
Introduction
This book reflects a certain skepticism about filtering trends. Behind this skepticism is both
an acceptance that freedom of expression (including the right to seek, receive, and impart information and ideas) is a basic human right under international law, and a sense that many
governments’ filtering practices represent an obstruction of this right. To ground these assumptions, this chapter seeks first to set out generally what constitutes international law, to
whom it applies, and in what contexts, and second to consider how these concepts relate to
filtering. At the heart of the matter is the question of if and how legal means can be used
to regulate Internet filtering at an international level to protect freedom of expression.
This chapter introduces several elements in considering filtering from a human rights
perspective—including international law as commitments among state actors, the setting out
of human rights in international law, and filtering as a potential obstruction of the human right
to freedom of expression. This chapter finds that international human rights agreements provide a valuable framework for determining what constitutes permissible and impermissible filtering, but that these instruments fall short on the enforcement end due to widespread filtering
and states’ apparent reluctance to take action against one another. The chapter then turns
to consider domestic approaches for holding private actors accountable internationally, but
notes that these approaches are inadequate on their own. Finally, the chapter points to the
promise of international standards for enabling nonstate actors to prevent broadscale filtering
and thereby facilitate the exercise of freedom of expression.
The Backdrop
The modern international system dates from the Peace of Westphalia (1648),
1 which established the principles of 1) state sovereignty
2 and the right of self-determination; 2) legal equality among states; and 3) nonintervention of states in one another’s internal affairs. In this
system, states are the actors, giving life to international law as they create it together and
agree to be mutually bound by it. As such, international law rests on the consent of sovereign
states.