Internet Shutdowns in Asia: Locating the Right to the Internet a Human Right Under International Human Rights Law
On May 2022, the United Nations Human Rights Council (UNHRC) published a report which documented that the majority of the internet shutdown was reported in Asia. Internet shutdown has become an instrument for many authoritarian governments to control the country and its citizens by suppressing dissenting voices, criticism of government policies, and censoring information. Bangladesh, Cambodia, China, India, Iran, Kazakhstan, Kyrgyzstan, Myanmar, Pakistan, Philippines, Sri Lanka, Tajikistan, Turkmenistan, and Uzbekistan, have imposed some kind of internet shutdowns to restrict access to the internet. Justifications offered for such shutdowns include preventing cheating in government exams, public safety, containing the spread of incitement to discrimination, hostility or violence, or combatting disinformation and deterioration in law and order.
The UN General Assembly’s resolution (non-binding instrument) declared the right to internet access as a human right. However, such a right to the internet is not articulated in law of any above-mentioned Asian countries. This contribution considers the emerging contours of the right to the internet in International Human Right Law (IHRL) and argues for its express inclusion in this body of law in order to enhance human rights protection overall in the domestic context.
The Internet is crucial not only for exercising freedom of expression but also for protecting the freedom of association, , information and education, health, employment, non-discrimination principle, and various other economic, social, and cultural rights. The right to the internet is therefore an indispensable enabler of a broad range of human rights.
Access to the internet is critical for economic growth and development, particularly in the digital age. Shutting down the internet can have serious economic consequences and can have long-lasting impact, greatly exacerbating pre-existing social and economic inequalities, particularly for businesses that rely on online communication and transactions. Internet shutdowns can lead to social unrest, protests, and even violence. This can undermine political stability, making it more difficult for governments to govern effectively. During the COVID-19 pandemic, the internet become a sole instrument to access education, information and continue work for whole world. The internet was also a significant means for finding and spreading essential public health information about the pandemic, making it a crucial component of accessing the fundamental right to health. Thus, countries that are parties to IHRL treaties have a positive obligation to protect and negative obligation to refrain from interfering with access to internet, if restrictions impedes the enjoyment of other recognised human rights.
According to the 2022 UNHRC report documenting internet shutdowns reported by civil society across 55 countries, no official justification for these shutdowns was provided in 228 cases. Existing research into these internet shutdowns suggests that authoritarian governments impose internet shutdowns to restrict access to social media, disrupt democratic elections, foster military coups, and even suppress war crimes and genocide, among other devastating impacts.
In 2021, Myanmar ordered approximately 15 internet shutdowns, wherein the longest nationwide internet disruption stayed about 2.5 months (593 days). Notwithstanding, the Supreme Court of India ruling in 2019, that illegal and unreasonable internet shutdowns contradicts the Indian Constitution, the Indian government ordered 85 internet shutdowns (551 days) in Jammu and Kashmir in 2021 alone. In Pakistan, the residents of Pakistan’s Federally Administered Tribal Area experienced a four-year-long internet shutdown (2026 days). In Iran, the authorities imposed an internet shutdown to control nationwide protests that broke after the death of Mahsa Amini in police custody.
In Central Asia, countries including Kazakhstan, Kyrgyzstan, Turkmenistan, Tajikistan, and Uzbekistan are heavily criticized as digital dictators by the internet rights advocacy groups. In Kazakhstan, a curfew was imposed after the week-long internet shutdown, and three citizens were killed after they went out because due to the lack of internet access, they weren’t aware of the curfew. In the Khorog & GBAO region of Tajikistan, students were unable to access online educational resources for four months between November 2021 and May 2022. Social media sites like Twitter, TikTok, VKontakte, Skype, and WeChat are blocked in Uzbekistan, similarly, other sites like Gmail, Facebook, Instagram, and Zoom are blocked in Tajikistan. These restrictions on access to the internet impinge on the freedom of expression, limit access to information, education and employment opportunities, and disproportionately affect marginalized groups. Therefore, access to the Internet is vital for securing the enjoyment of many expressly recognized human rights. But is there a right to the internet as such?
The right to the internet is not a codified human right under IHRL. However, as already shown, it is inter-linked with other rights, such as the freedom of expression under the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR stipulates that ‘everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’
Article 19 does not expressly refer to the right to the internet, but clause (2) of Article 19 explicitly protects the ‘media’ of expression and access to information. Article 19(2) states that freedom of expression inter alia includes freedom ‘to seek, receive and impart information and ideas of all types in the form of art, or through any other media of his choice.’
The literal interpretation of the expression ‘media’ would mean either protection to channel or form of expression. However, it has been convincingly argued that the expression “media” is ‘broad and entails contemporary or prospective technology used for the exchange of ideas and information. Accordingly, the expression ‘other’ further implies that what foregoes the term “media” was stated as an illustration. Therefore, following the doctrine of ejusdem generis (‘of the same kind and nature’), the expression ‘media,’ will be defined by the preceding specific words in the list, including both the form and the channel of expression which incorporates technologies of connection such as the ‘Internet.’ Thereby, any restrictions other than mentioned in Article 19(3) on the ‘means’ would unnecessarily impact expression. Consequently, protecting the ‘means of expression’ can serve to protect the expression as well. Therefore, the structural tenet of Article 19 substantiates the emergence of the right to Internet a derivative right of freedom of expression.
In 2011, the Special Rapporteur on the Freedom of Expression and ICCPR General Comment No. 34 followed by the Human Rights Council, for the first time addressed the arbitrary restriction on the internet and recommended that state parties take all necessary steps on fostering access to the Internet with the least restriction. Scholars have contended that in the future where human rights remain the dominant language for moral reasoning, technological developments are likely to force the creation of new human rights. Furthermore, Frank La Rue contended that the history of the drafting of Article 19 of the ICCPR & UDHR reflects that both of the instruments were drafted with forethought ‘to comprise and accommodate future technological developments for exercising freedom of expression.’ (¶8) and argued that internet access should be recognized as a human right crucial to freedom of expression.
Carl Wellman argues that derived rights can be either a more characteristic form (i.e. freedom of the press under Article 19 of ICCPR) or auxiliary rights served to protect primary rights (i.e. indirect discrimination under Article 14 of ICCPR). Thus, the newly derived right takes the position as a secondary right possessing all the protection and restrictions of the primary right itself. Interestingly, the UNHRC recognised the right of climate change refugees (not explicitly a binding IHRL) under the realm of the right to life, which is a fundamental human right as stipulated in major IHRL treaties. In the similar vein, other recognised rights in IHRL treaties can be used to support the right to the internet as a derived right. Such express rights which could ground the right to the internet are the right to privacy (Article 17, ICCPR), freedom of association (Article 21, ICCPR); right to health (Article 12, ICESCR); and right to education (Article 13, ICESCR).
In India, without adhering to the principle of proportionality, the authorities imposed an unlawful internet restriction (a secondary right) in Jammu and Kashmir. With the internet shutdown, Kashmiri students were unable to access online educational resources such as textbooks, course materials, and online tutorials. The internet shutdown made it difficult for schools and universities in Kashmir to conduct examinations and release results in a timely manner, which can have serious consequences for students’ academic progress. The shutdown also had a disproportionate impact on vulnerable groups, such as girls and children from marginalized communities, who may already face barriers to accessing education. In these circumstances, the enjoyment of the right to education (a primary right) and right against discrimination (a primary right) of Kashmiri students which are fundamental rights under Article 21A and Article 14 of the Indian Constitution and Article 13 of the ICESCR were significantly impaired. Thus, here the unlawful internet restrictions on the secondary right directly affected the primary right.
In 2013, UNESCO introduced the concept of internet universality, focusing on access to the internet as a human right. In 2016, the UN General Assembly passed a resolution, derived from Article 19 of the UDHR that declared the right to internet access as a human right. The Resolution was well-received by the international community. It calls upon the states to formulate and adopt domestic policies that have the objective of universal access to the internet. However, the Resolution didn’t impose any obligations on the states with regards to the infrastructure necessary for internet access or penalties on non-adherence on access. Article 2(1) & (2) of the ICCPR stipulates that state parties must respect and must take necessary steps to give immediate effect to the rights mentioned in the Covenant. La Rue and General Comment No. 34 also stated that state parties must take necessary steps to provide access and infrastructure. Stephen Tully rightly contends that while balancing the right to the internet with other recognised rights like freedom of expression and right to health, the State have a positive obligation to provide necessary infrastructure for easy and transparent access and subsequently, a negative obligation to stop restricting access to the internet if such restriction impedes the exercise of other rights.
The growing shift in international law highlights an intersection of norms and developments towards a recognition of internet access as a human right. Without the right to the internet, the meaningful exercise of other basic human rights seems impossible. The necessity for upholding the right to internet access is embedded in the indivisibility of basic human rights. The foundational structure of all human rights is propounded on the notion of interdependence, interrelatedness, indivisibility, and universality. Without internet access, individuals may be unable to participate fully in public affairs and politics, access vital information and services, and exercise other fundamental rights. For instance, without internet access, individuals may be unable to access online educational resources, which are increasingly becoming a crucial component of education. They may also be unable to access telemedicine services, which have become more important after the COVID-19 pandemic. In addition, the internet is an important platform for political participation, enabling individuals to connect with others, organize and mobilize, and hold governments accountable. Thus, recognizing the right to access the internet as a human right would help promote and protect a range of fundamental values and principles, including freedom of expression, education, political and social participation, economic opportunities, and equality.
The quest to recognize the right to the internet can also be supported by the principle of Customary International Law (CIL) following the doctrines of state practice and opinio juris. Many states have recognized the right to the internet. European countries including Estonia, France, Finland, Greece, Germany, Spain, and Sweden, have recognized access to the internet as a human right. North American countries including Costa Rica and Mexico have also recognized access as a human right. In Asia, India’s Supreme Court and High Court and Pakistan’s High Court have recognized that arbitrary internet shutdown violates the fundamental right of freedom of expression. This increasing state recognition of the right to internet access, across many regions and through various means, strengthens the case for the recognition of the human right to internet access under CIL.
To acknowledge the right to the internet as a human right, the international community’s collaborative approach is crucial. Notwithstanding the mere declaration of the right to the internet via resolutions, the UN should take steps towards enforcement through convention or treaty-based mechanisms. This would impose on states’ an obligation to guarantee effective implementation of the right to the internet within the fundamental IHRL. In doing so, the IHRL must take into consideration the inequality faced by marginalized communities that persists in the digital regime. However, the foremost step remains the acknowledgement of the right to the internet as a binding and enforceable human right under IHRL.
Sarthak Gupta is an undergraduate law student (BA; LLB) at the Institute of Law, Nirma University, India. He is a Staff Writer and Associate Editor at JURIST, University of Pittsburg, Pennsylvania, USA.
Read more on this topic in the Asian Journal of International Law.