The 2024 AU Common Position on the Application of International Law in the Cyberspace: Some Implications for the Development of Digital Human Rights

Introduction

The African Union Peace and Safety Council (PSC) has adopted in late January 2024 its much-anticipated and first-ever Widespread African Place on the Software of Worldwide Regulation to the Use of Info and Communication Applied sciences in Our on-line world (‘Widespread African Place’ or CAP). The CAP displays the views of the AU’s 55 member States. Given the truth that solely 30 or so different states in the remainder of the world revealed their nationwide positions concerning  the applicability of worldwide legislation in our on-line world, the CAP gives an exceptionally important supply for figuring out worldwide legislation on the subject.  A lot of the discussions on the CAP since its adoption have centred on its drafting course of, and on chosen themes, corresponding to rules of territorial sovereignty, non-intervention, and non-use of drive, and particular points, corresponding to sovereignty in cyber area. On this publish, we search to discover the methods by which the CAP treats one other necessary side of the applicability of worldwide legislation in our on-line world – the CAP’s method to the applying of worldwide human rights legislation in our on-line world and, particularly, to the emergence of digital human rights.

The raison d’être for a continental place within the digital age

Earlier than specializing in the remedy of digital human rights within the CAP, we briefly deal with the motivations of the PSC in creating a typical place on the applicability worldwide legislation in our on-line world. There are not less than three main rationales for the consolidation of a continental place on such a matter. First, Africa is on the transfer to digitally rework itself and seize the alternatives offered by new and rising data and communication applied sciences. The adoption of the CAP constitutes – as talked about in its preambular ¶11 – one other step in direction of implementing the dedication expressed by the AU within the Digital Transformation Technique for Africa, particularly “to harness digital applied sciences and innovation to rework African societies and economies to advertise Africa’s integration, generate inclusive financial development, stimulate job creation, bridge the digital divide, and eradicate poverty for the continent’s socio-economic growth and guarantee Africa’s possession of the trendy instruments of digital administration.”

Second, the adoption of the CAP seeks to offer much-needed readability for States with relation to their obligations in our on-line world, together with within the discipline of human and peoples’ rights (see  preambular ¶ 3). The third rationale pertains to the distinctive technical traits of our on-line world and the distinctive nature of threats posed by each State and non-State actors, which invitations a dialogue amongst varied stakeholders at nationwide, regional, and worldwide ranges by means of an inclusive and multilateral course of (see right here). The participation of 55 African states within the adoption of CAP beneath the auspices of the AU displays, on this regard, the expectation that the African continent will play an lively function within the worldwide governance of our on-line world. The insistence on making Africa’s voice on these issues heard is implicitly mirrored within the principled place expressed in preambular ¶ 6 – “All States have an equal proper to take part within the articulation of guidelines of worldwide legislation that apply in our on-line world and the views of all States have equal weight and worth on this course of”. The lively and complete participation of African states on this creating space of worldwide legislation additionally has broader international governance implications, because it brings legitimacy and inclusivity to the governance of our on-line world.

The necessity for process-legitimacy was additional underscored by AU Particular rapporteur, Mohammed Helal, who famous the involvement of unbiased African specialists within the means of drafting the CAP itself: “Moreover, to broaden participation within the drafting of the CAP and to make sure that it loved larger legitimacy as an expression of African views on worldwide legislation and our on-line world, a number of main African jurists had been invited to affix the method.”

Key contributions for the event of digital human rights

As we clarify beneath, the CAP has made a notable contribution for the event of a worldwide imaginative and prescient for digital human rights. For the aim of this publish, we outline digital human rights as the applying of worldwide human rights legislation within the digital realm, whose growth might be divided into three “generations”: (1) the difference of present rights to on-line environments; (2) the creation of recent digital rights, corresponding to the best to entry the Web, the best to be forgotten and the best to not be subjected to automated selections; and (3) the introduction of recent rights and obligation holders (e.g., digital individuals and on-line platforms exercising quasi-sovereign energy).

Firstly, the CAP expressly endorses the primary generations of digital human rights, i.e., the applicability of “the identical rights individuals have offline have to be protected on-line” doctrine. The CAP clearly units this out it beneath ¶ 54:

“The African Union affirms that worldwide human rights legislation (IHRL), whether or not codified in common or regional conventions to which States are social gathering or embodied in customary worldwide legislation, applies in our on-line world, and in addition reaffirms the universality, indivisibility, interdependence, and interrelation of all human rights and elementary freedoms, together with the best to growth.” (emphasis added)

That is congruent with the method adopted in numerous UN Resolutions – most not too long ago within the World Digital Compact – which affirmed the net applicability of offline human rights (¶ 8(c)):

“This Compact is anchored in worldwide legislation, together with worldwide human rights legislation. All human rights, together with civil, political, financial, social and cultural rights, and elementary freedoms, have to be revered, protected and promoted on-line and offline. Our cooperation will harness digital applied sciences to advance all human rights, together with the rights of the kid, the rights of individuals with disabilities and the best to growth;” (emphasis added)

It additionally coincides with Rule 34 of the Tallinn Handbook 2.0 which clearly extends and applies worldwide human rights legislation (IHRL) to cyber-related actions, as:

“The Worldwide Group of Specialists agreed that worldwide human rights legislation, whether or not present in customary or treaty legislation, applies in relation to cyber-related actions. As famous, (…) the precept that the identical rights individuals have offline are to be protected on-line has been asserted repeatedly in quite a few multilateral and multi-stakeholder fora…” (emphasis added)

It could be famous that the proposition that “the identical rights individuals have offline have to be protected on-line” is reaffirmed in dozens of nationwide coverage statements on worldwide legislation and  cyber operations put ahead by a number of nations (most, however not all of which, hailing from the World North), corresponding to Austria, Canada, Costa Rica, the Czech Republic, Denmark, Finland, Eire, Italy, Japan, the Netherlands, Norway, Poland, Romania, Sweden, Switzerland, the UK (2021), and the USA (2021).

Considerably, the CAP reiterates earlier AU positions on the query of applicability of worldwide human rights legislation in digital environments. The African Fee on Human and Peoples’ Rights (‘ACmHPR’) embraced an identical method in its 2019 Declaration of Rules on Freedom of Expression and Entry to Info in Africa. For instance, based on Precept 5 of the Declaration, the best to freedom of expression, safeguarded by Article 9 of the African Constitution on Human and Peoples’ Rights (‘ACHPR’, often known as the ‘Banjul Constitution’), is equally relevant to on-line expression. In accordance with Rules 40-41, which cope with private data and communication surveillance, the identical applies for the best to privateness. This method to digital human rights, which stipulates that the rights people possess offline ought to be equally upheld on-line (see right here, right here and right here), has been described by one of many authors of this publish as ‘normative equivalency’, inviting the difference and transposition of present human rights to the digital realm.

Whereas the second technology of digital human rights weren’t expressly talked about within the CAP, it implicitly helps new digital human rights corresponding to the best to entry the Web. Particularly, the CAP seeks beneath ¶ 58 to find the necessity to bridge digital divide in a human rights context, by means of selling entry to the Web particularly for disempowered or marginalised people and teams:

The African Union highlights the significance of bridging the digital divide to making sure the complete enjoyment of human rights. On this regard, States shall contribute to additional empowering girls and ladies. States shall additionally additional promote the complete enjoyment of the advantages of ICTs by individuals with disabilities by making certain that the design, growth, and manufacturing of ICTs incorporates assistive and adaptive applied sciences which can be accessible to individuals with disabilities. (emphasis added)

To make certain, the language of the CAP doesn’t take a agency place on the perennial debate as as to whether entry to the web ought to be thought to be a stand-alone human proper – a query which stays unsettled within the worldwide human rights legislation  (see, e.g., the previous UN Particular Rapporteur Frank La Rue’s report, ¶ 80 and the Tallinn Handbook 2.0 p.195) and the tutorial literature thereon (e.g. see  right here, right here, and right here). Nonetheless, we word, on this regard, that one other necessary AU instrument – the 2014 Conference on Cyber Safety and Private Information Safety – lays the groundwork for the event of recent digital human rights, corresponding to the best to be forgotten (or a proper to erasure) and the best to not be topic to automated selections.  

Lastly, the CAP helps the emergence of a 3rd technology of digital rights, by requiring that duties be positioned on companies working within the digital sector. In doing so, it articulates the duty each of States and non-State actors to respect and shield human rights within the our on-line world. The CAP acknowledges this beneath ¶56 within the following phrases:

“The African Union affirms that States shall shield people and peoples inside their territory or in areas beneath their jurisdiction towards violations of human rights which can be dedicated by third events, particularly enterprise enterprises working within the ICT sector. Furthermore, enterprise enterprises that function within the ICT sector have a duty to respect and shield human rights, particularly the best to privateness and the liberty of expression, together with by exercising due diligence to determine, stop, mitigate, and account for any opposed human rights impacts of their actions.” (emphasis added)

The states’ obligation to guard and the digital companies’ duty to respect human rights within the CAP mirror the rules outlined within the UN Guiding Rules on Enterprise and Human Rights.

Missed alternatives

The CAP is important in that it offers impact to the best of African states to actively and successfully take part within the growth of worldwide legislation relevant in our on-line world, together with worldwide human rights legislation in our on-line world. This a fast-developing discipline of worldwide legislation, whose early development has been dominated by nations from the World North, threatening to repeat therein law-creation pathologies which have bothered worldwide legislation through the years. The CAP demonstrates that AU member states not solely deserve a seat across the desk by which selections concerning the applying of worldwide legislation in our on-line world are made, however that the AU has the distinctive capability to talk in a single voice, within the identify of a complete continent, about these troublesome points, in a fashion that’s not more likely to be replicated in different areas of the world.

Nonetheless, the CAP additionally represents a missed alternative for the AU to imagine a trailblazing function within the growth of the sector of worldwide human rights legislation in our on-line world, particularly in areas by which Africa has a singular expertise and perspective. First, with respect to the necessity for brand spanking new digital rights (second technology rights), the CAP is ambiguous. That is regardless of the  management proven by the AU in adopting the 2014  Conference, which enumerates necessary digital rights which have the potential to grow to be common digital human rights, earlier than comparable regional devices on digital rights, such because the EU Normal Information Safety Regulation (GDPR) and the Council of Europe  Conference 108+ had been adopted. The apparent concern of African nations with the slowness of the method of closing the digital divide and the acknowledged hyperlink within the CAP between entry to expertise and delight of human rights, ought to encourage them to think about formulating claims to facilitate entry to new and rising expertise, together with open, safe, steady and accessible entry to the Web, as unbiased human rights.  

Second, the CAP represents a missed alternative to make clear the place of the AU member states on the problem of extra-territorial human rights obligations. This can be a dimension which is crucial to the event of worldwide human rights legislation in our on-line world: Whereas offline human rights are based totally on the train of nationwide jurisdiction within the territory of various states (with some notable exceptions), the borderless nature of the Web and expertise transfers, poses distinctive challenges for the applying and enforcement of digital human rights (see right here, right here and right here). But, the place articulated by the CAP on this regard doesn’t make the purpose strongly and clearly. CAP ¶53 solely gives on this regard that “States shall respect, shield, and make sure the human rights of people and peoples on their territory or beneath their jurisdiction that relate to the peaceable use of ICTs in our on-line world, together with by defending such particular person and collective rights towards infringements by third events and non-State actors.

Notably, this formulation is weaker in comparison with broader positions on extra-territoriality adopted by Costa Rica and Switzerland, which attempt to align duty for human rights violations with efficient management by states over the flexibility of people to take pleasure in their human rights, wherever they’re positioned. The formulation discovered within the CAP is especially disappointing when in comparison with the extra exact language famous above used with regard to the associated concern of company duty. Notice that the allusion within the CAP to “transnational interception of communication” does recommend that the AU member states share, in precept, the identical practical method to extraterritoriality as Costa Rica and Switzerland. However sadly, they haven’t articulated their place on the matter in sufficiently clear phrases.

Lastly, and most significantly, it’s regrettable that the one regional system that prides itself on creating an method to human and peoples’ rights that’s  communal in its orientation, didn’t clearly articulate how the communal dimensions of worldwide human rights legislation must be protected in our on-line world. Whereas the CAP mentions briefly the relations holding between an “open, safe, steady, accessible, and peaceable” our on-line world and the best to sustainable growth, and between creating scientific and technological capabilities within the discipline of ICT and the enjoyment of financial, social and cultural rights (CAP ¶53 ), it doesn’t emphasise the human rights dimension of collective values corresponding to African cultural identification and heritage, a way of belonging to a neighborhood and particular person participation in self-determination and growth, which is perhaps adversely affected by actions in our on-line world.  

Concluding ideas

Provided that the views expressed within the CAP are a non-exhaustive articulation of the views of the member states of the African Union concerning a few of the salient questions referring to the applying of worldwide legislation in our on-line world (see ¶¶ 10 & 68), we argue that AU ought to consistently replace its positions in mild of technological developments, new cyber threats and challenges, the communal conception of human rights in Africa and lived realities within the Continent. In a 2021 decision (¶2), the African Fee on Human and Individuals’s Rights emphasised that African values and norms have to be severely thought-about in formulating regulatory frameworks for digital applied sciences and AI governance. This method is important to deal with the worldwide epistemic of injustice that also exists. Such African contexts and approaches ought to be given severe consideration in future restatements.