Law, legitimacy and human rights in cyberspace

Law, legitimacy and human rights in cyberspace

Challenges facing human rights in our brave new cyberworld invite reflection on how the law can be of assistance. Yet, the law also needs to respond to social values of what is acceptable and legitimate -- especially from the angle of democracy, sustainable development and aspirations of peace.

The first challenge is the spread of technology and digital platforms, which has both positive and negative effects. On the one hand, this phenomenon enables us to access services, information and data more easily and is interrelated with automation. Mass online courses will disrupt the education system, making parts of the current set-up redundant. Yet, abuses are also rampant. Algorithms are part of systemic data collection, often unbeknownst to the user, which may have a detrimental short- and long-term impact on people's privacy, especially via digital profiling that leads to discrimination.

Such fears have sparked calls for regulation of digital platforms to mitigate the negative effects, including the use of "notice and take down" contracts that enable deletion of personal information from the internet as part of the right to be forgotten, as well as technological solutions such as filters and alternative encryption. There is also no substitute for a discerning public -- who should be educated about the pros and cons of digitisation.

In a world where digitisation is become even more pervasive with the all-embracing "internet of things", laws based on legitimacy help us to balance freedom of expression, the imparting and collection of information, and the right to privacy -- particularly to safeguard personal data and ensure that what is made public through digitisation is based upon acceptable reasoning. There is a strong case for regulation that ensures personal data is kept private, and made public only if there are legitimate justifications, such as for demographic analysis to improve public services.

Secondly, robotisation poses an innovation challenge. The era of artificial intelligence and robots is already here. On the one hand, robotisation facilitates work and livelihoods by reducing human workloads and handling huge repetitive tasks without errors. It may also offer a helping hand in the era of our ageing population. Yet, it is also part of a change to patterns of work which can be both life-altering and disruptive. The negative side is already evident in the use of drones in warfare and the ominous threat of killer robots.

While clear rules governing the relationship between humans and robots are yet to be developed, ultimately the "humans in command" approach must prevail and should guide evolution of laws on this front.

The third key challenge is securitisation. We refer in particular to the issue of national security. It is understandable that states must take certain actions to prevent and address threats, which may vary from terrorism to natural disasters and armed conflicts.

Yet, national security is all too often invoked by non-democracies to justify their rule. A particularly insidious practice is the integration of digitisation, robotisation and securitisation by undemocratic elements for the purpose of social control. Here, surveillance and political-social-ethnic profiling can lead to violations and violence against political dissidents and minorities mistrusted by the state machinery.

In this respect, a state's claim that it must adopt a cyberlaw, computer crimes law, etc, to regulate various practices -- thereby impacting on privacy and other basic human rights -- is not legitimate in the eyes of the international community unless those laws comply with the international framework pertaining to such issues, particularly as evolved by the UN. It is thus important to underscore that national security is an exception rather than the rule.

Fourthly, the priority now accorded to the environment -- environmentalisation -- is linked with the issue of sustainability, now clearly enunciated by the global Sustainable Development Goals (SDGs) 2015-2030 which have enjoyed universal "buy-in" by states, at least in principle.

Laws and their legitimacy have to be tested against the backdrop of these SDGs, which are part of a global policy framework (soft law) complemented by more binding instruments (hard law) such as the UN Framework Agreement on Climate Change, the more recent Paris Accord, and human rights treaties. In practical terms, development and environment-related activities such as the construction of dams have prompted calls for stricter safeguards to protect the environment. For instance, the claim that there is an identifiable national law allowing construction of a dam, and that there is a need to build the dam, is not legitimate unless there has been a genuine environmental and human rights impact assessment beforehand, with mitigation measures that meet international standards as per environmental treaties and related instruments. This obvious links with the need to address the plight of people displaced by development.

Finally, there is the perspective of inclusion-exclusion. The preferred approach for human interaction is, of course, "inclusion". This has been consecrated more recently by the SDGs, which underline the notion of inclusiveness being at the heart of human rights premised on non-discrimination. It pertains to all groups at risk of exclusion, alienation or marginalisation. It is interlinked with the call to eradicate poverty, to overcome discrimination and violence, and to respect the diversity of groups, such as minorities, under the protection of international law, bearing in mind the call for gender sensibility and equity.

Yet, there is a disquieting interface with certain national policies that now demonise non-nationals and minorities as part of a populist nationalism steeped in the "scapegoat syndrome". This embeds xenophobia and related intolerance in the national mindset. And it should be recognised that such repression can give rise to frustration and alienation -- which might ultimately lead to extreme violence perpetrated by those denied space for public participation and a cathartic process of shared development. Laws based on legitimacy help us to stem this tide by measuring national actions against international standards, whether these standards take the form of soft laws such as the SDGs or hard laws such as human rights treaties and international calls for accountability for crimes such as genocide and other atrocities, together with global-local action to overcome impunity.

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He was formerly UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on Human Rights. This is derived from his recent keynote address for the International Conference on Law, Legality and Legitimacy organised by Faculty of Law, Chiang Mai University.

Vitit Muntarbhorn

Professor of law at Chulalongkorn University

Professor Vitit Muntarbhorn teaches at Chulalongkorn University, Bangkok.  He has helped the UN in a variety of  positions and is currently a member of a UN Human Rights Commission of  Inquiry.  This article is derived from his speech at the recent Conference on Asean Traversing 2015:  Challenges of  Development, Democratisation, Human Rights and Peace, organised by Mahidol University, Bangkok.

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