Feb 12, 2021 | Advocacy, News
The Myanmar military should immediately abandon the draft Cyber Security Law and end Internet restrictions it has imposed since taking power in a coup on 1 February, said ARTICLE 19, Open Net Association, and the ICJ today.
“It is telling that controlling cyberspace is one of the top priorities of the Myanmar military, which seized power through an illegitimate coup d’etat only last week,” said Sam Zarifi, ICJ’s Secretary General. “The military is used to having total power in Myanmar, but this time they have to face a population that has access to information and can communicate internally and externally.”
Under international law, the rights to freedom of expression and information may only be restricted if prescribed by law, in pursuit of a legitimate aim, and necessary and proportionate to that aim. This right applies equally online. In 2018, the UN Human Rights Council condemned ‘all undue restrictions on freedom of opinion and expression online that violate international law’.
“Having illegally seized control of government, the military is trying to ram through a hugely problematic law that would imperil the Myanmar public’s ability to share and access information online,” said Matthew Bugher, ARTICLE 19’s Head of Asia Programme. “The draft law is further evidence of the military’s intent to control online discourse and permanently undermine Internet freedom in the country.”
Human rights bodies and experts have repeatedly condemned Internet shutdowns, which are inherently unnecessary and disproportionate irrespective of their purported objectives. Four UN special procedures with mandates from the Human Rights Council stated in their 2011 Joint Declaration on Freedom of Expression and the Internet that, ‘Cutting off access to the Internet, or parts of the Internet, for whole populations or segments of the public (shutting down the Internet) can never be justified, including on public order or national security grounds’. The UN Human Rights Council has repeatedly called on Myanmar to lift Internet restrictions in the country.
Anonymity is furthermore crucial to protecting the right to freedom of expression and other human rights, including the right to privacy. UN Human Rights Council Resolution 38/7 recognizes that ‘privacy online is important for the realization of the right to freedom of expression and to hold opinions without interference, and the right to freedom of peaceful assembly and association’. The UN Special Rapporteur on freedom of expression in a 2015 report stated that restrictions on encryption must confirm to the three-part test on restrictions to the freedom of expression noted above.
“The ban on online anonymity in the cybersecurity law is not just bad for Myanmar but sets a dangerous precedent for the whole of Asia”, said Kyung Sin Park, Executive Director of Open Net Association, whose founders spearheaded a successful constitutional challenge against a similar law in South Korea in 2012. “The content takedown provisions and criminalization of online speech in the draft law are extremely broad and utterly lacking due process even in comparison to other Asian countries. The proposal smacks of a legislative attempt to extend the powers the military had taken in an unlawful, anti-democratic coup.”
ISPs, online service providers (as defined by the draft law to mean content providers) and other stakeholders have only been given until 15 February for input. This is a clear indication that the military has no intention of engaging in meaningful consultation.
On 10 February, a group of 158 Myanmar civil society organizations released a statement rejecting the draft Cyber Security Law, while reiterating their view that the Myanmar military could not legitimately exercise legislative authority.
“All online service providers inside and outside the country should be alarmed at this intrusion of military authority into cyberspace and refuse to implement these hugely problematic restrictions,” said ICJ’s Sam Zarifi.
SPECIFIC PROBLEMATIC PROVISIONS OF THE DRAFT CYBERSECURITY LAW (based on an unofficial translation of the draft law):
Many provisions in the draft law are vague and overbroad, in contravention of the principle of legality. If enacted, the draft law would greatly extend the powers of military authorities to restrict and punish online expression.
The law provides overarching control to the military’s ‘State Administration Council’, a newly-formed body appointed by the Commander-in-Chief. The direct military control of Internet service provision and its role in the policing of content online is in and of itself cause for alarm. Further, the military should in no circumstances be charged with protecting personal data.
Section 29 of the draft law is overly broad as it demands the prevention, removal, destruction and cessation of a broad and vaguely defined range of expression, including online comments deemed ‘misinformation’ or ‘disinformation’, any expression that causes hate and risks disrupting unity, stability, and peace, and ‘written and verbal statements against any existing law’.
Under section 64, any person convicted of creating ‘misinformation’ and ‘disinformation’ with the intent of causing public panic, loss of trust or social division in cyberspace is punishable by three years’ imprisonment, a fine, or both.
International human rights bodies have repeatedly urged governments against laws that create ‘false news’ offences, warning about their potential abuse by governments to suppress criticism and other forms of speech protected by international human rights law.
Section 30 threatens the right to online anonymity by requiring online service providers to retain usernames, IP addresses, national IDs, and other personal data for up to three years, and to provide this information to authorities upon request. For this purpose, Section 28 requires an online service provider to ensure that any device that stores the user’s information must be kept in a place designated by the relevant Ministry.
The draft law also has overly broad catch-all provisions in Sections 61 and 73 respectively whereby online service providers that fail to comply with any provisions of the draft law face a maximum penalty of three years’ imprisonment and a fine and individuals failing to comply with any rules, regulations, notifications, orders, directives, and procedures issued under the draft law are subject to one year’s imprisonment and a fine. These sanctions which are punitive in purpose and effective are non-compliant with the requirement of proportionality under international human rights law and standards on freedom of expression.
The draft law also provides for enhanced power to control the Internet without the benefit of judicial review by independent civilian courts. In the ‘public interest’, a ministry approved by the State Administration Council may temporarily prohibit any online service or take control of devices related to online service provision, as well as permanently ban any online service provider. This is a less stringent standard than that provided under the problematic and much-criticized section 77 of the Telecommunications Act, which allows for shut downs or control of telecommunications in an ‘emergency situation’.
Download
Statement in Burmese.
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
Feb 5, 2021 | Advocacy, Non-legal submissions
Today, the ICJ and other human rights NGOs have written to UN Member States to call for a renewal of the mandate of the UN Commission on Human Rights in South Sudan.
The joint letter highlights the existing remaining concern on the human rights situaion in South Sudan and provide with key recommendation for its functioning.
Find the joint letter here: SouthSudan-UN-JointLetter-Advocacy-NonLegal-2021-ENG
Contact:
Massimo Frigo, ICJ UN Representative, e: massimo.frigo(a)icj.org, t: +41797499949
Feb 5, 2021 | Advocacy, Non-legal submissions
Today, the ICJ joined several human rights NGOs to stand in solidarity with Venezuelan NGOs subject to threats, harassment, attacks, restrictions, reprisals and criminal proceedings by State authorities.
The joint statement reads as follows:
The recent, ongoing and unwarranted detention of five members of the Venezuelan NGO ‘Azul Positivo’ is one more event in a series of threats, harassment, attacks, restrictions, reprisals and criminal proceedings against Venezuelan civil society organizations and human rights defenders, which has been intensifying since November 2020.
In recent months and weeks, state agents have forcibly entered the offices of civil society organizations; public threats have been made against defenders who have been engaging with human rights mechanisms, NGO bank accounts have been frozen and arrest warrants issued for aid workers.
Venezuelan civil society operate in a context of serious legal and administrative obstacles with domestic laws used to target human rights defenders, such as the ‘Law Against Hate’, or having the effect of limiting the operations of NGOs and restricting their access to funding, essentially blocking the work of many organizations vital for Venezuelans in need.
In a public statement, a number of UN independent human rights experts and regional experts have described threats and measures taken against Venezuelan civil society since November 2020 as amounting to ‘systematic persecution and stigmatization.’
It is essential that humanitarian and human rights organizations responding to the grave humanitarian and human rights crises in the country, pushing for accountability for violations and abuses and the return of guarantees provided by democratic institutions and processes are able to do their work without fear or hindrance.
Human rights defenders are critical, constructive and essential to democracies and the functioning of the rule of law. Attempts to silence and cow them are counterproductive and shameful.
We urge the Venezuelan authorities to ensure that harassment and threats against Venezuelan defenders stop and for all international legal guarantees to be respected.
We call on all states and UN bodies and agencies to actively support civil society organizations, defenders and activists and to speak up loudly and consistently for the right to defend human rights in Venezuela and globally.
We are inspired by the daily commitment and courage of Venezuelan human rights defenders and humanitarian workers and stand in solidary with our Venezuelan partners and friends.
Signatories:
- Amnesty International
- Center for Justice and International Law (CEJIL)
- CIVICUS
- Civil Rights Defenders
- Conectas Diretos Humanos
- Freedom House
- Global Centre for the Responsibility to Protect
- Human Rights Watch
- International Commission of Jurists
- International Service for Human Rights
- People in Need
- Washington Office on Latin America (WOLA)
Feb 4, 2021 | Advocacy, News
The ICJ, in a letter to the Chairperson of the African Union, recommended that the African Union acknowledge that COVID-19 vaccines are a “public good” and all States must ensure access to these vaccines in order to realize the human rights of their inhabitants.
The African Charter on Human and People’s Rights, to which most AU Member States are Party, provides that “every individual shall have the right to enjoy the best attainable state of physical and mental health” (Art 16(1)). The Charter also places an obligation on the States Parties to take all “necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick” (Art 16(2)).
This obligation must be understood consistently with the equivalent Article 12 of the International Covenant on Economic, Cultural and Social Rights (ICESCR), to which most AU Member States are also Party. That provision protects the right to the “highest attainable standard of physical and mental health”, and requires States to take all necessary measures to realize this right including to ensure “the prevention, treatment and control of epidemic, endemic, occupational and other diseases” (Art 12(1)(c)). Vaccines, for some such diseases including COVID-19, are necessarily an integral part of prevention, treatment and control.
“It is essential for the process of vaccine procurement and allocation to be in line with international human rights standards. The African continent and its people cannot afford to be left behind, and the best way to ensure that does not happen is to move forward and prioritize each individuals right to health and corresponding human rights.” –
Justice Sanji Monageng, ICJ Commissioner, Botswana
Therefore, under these treaties and other internationally binding human rights law, it is clear access to certain vaccines is necessary to fulfill a human right, must not be seen as a privilege. Vaccines are a public good and should be treated as such by States. This understanding was affirmed by the UN Committee on Economic, Social and Cultural Rights (CESCR) in December in a statement on universal and equitable access to vaccines. CESCR stressed that: “every person has a right to have access to a vaccine for COVID-19 that is safe, effective and based on the application of the best scientific developments”. It further implored States to “give maximum priority to the provision of vaccines for COVID-19 to all persons”.
Recommendations of the International Commission of Jurists
The AU will be expected by the constituents of its Members to fulfil its proper leadership function in terms its Constitutive Act an ensure the promotion and protection of human rights in Africa. To this end, the ICJ calls upon the AU to adopt resolutions:
- Calling on all member States to ensure that their COVID-19 responses, including vaccine acquisition and distribution, comply with international human rights law and standards including those particularly relating to the rights to health and to duty ensure this right is realized through international cooperation.
- Calling on all member States to endorse and fully participate in the WHO’s COVID-19 Technology Access Pool.
- Calling on all member States to openly support the approval and implementation of a waiver of intellectual property rights in terms of the TRIPS agreement in order to ensure equitable and affordable access of COVID-19 vaccines and treatment for all.
- Calling on all member States to urgently publish public, comprehensive vaccine rollout plans and transparently provide clear and full health-related information to their populations.
- Calling on all participants in COVAX to endorse and fully participate in the WHO’s COVID-19 Technology Access Pool.
- Calling on the WTO to respond expeditiously and favourably to the proposal communicated by India and South Africa for waiver of IP protection for vaccines.
To read the full submission, click here.
Contact
Kaajal Ramjathan-Keogh, ICJ Africa Director Kaajal.Keogh(a)icj.org +27 84 5148039
Tanveer Jeewa, Media and Legal Consultant Tanveer.Jeewa(a)icj.org
Jan 20, 2021 | Advocacy, News
Today the ICJ in collaboration with Cordaid issued a report on a webinar series held on 21-22 October 2020 on enhancing access to justice for women in the context of religious and customary laws.
The Webinar discussions aimed to address the challenges of existing inequalities and discrimination experienced by women, girls and persons from other marginalized groups that have intensified amidst a wider increase in attacks worldwide on the rule of law.
The webinar platform served to facilitate exchange of views and strategies among human rights defenders, justice sector actors and persons from the religious community.
Webinar 1 grappled with what are often perceived as conflict between women’s human rights and pathways to justice based on custom and religion.
Webinar 2 involved a discussion of obligations under international human rights law and best practice to ensure access to justice in cultural and religious contexts.
Participants came from Asia, the Middle East and Africa, and exchanged experiences, expertise and perspective on ensuring gender equality and eliminating gender discrimination in the context of custom and religion. The key challenges identified when accessing justice in contexts where customary and religious laws are prevalent include:
- Many women live in situations where laws and policies operate to discriminate against women and there are serious deficiencies exist in the legal protection of women’s human rights and women’s ability to access justice.
- In some places, the plurality of customary and religious laws themselves contribute to a lack of equality among women and hinders access to justice for women.
- Poverty and lack of knowledge of human rights also contribute to inhibiting women from seeking or receiving justice .
- Negative experiences when interacting with justice systems also discourage women from further engaging with the system, and is a barrier to access to justice.
Some preliminary conclusions and recommendations identified through the webinar series include the following:
- All justice actors should understand that under international human rights law the objective of maintaining or promoting particular traditions, customs or religions, is not alone a valid basis for restricting, let alone violating, human rights.
- Human rights actors should continuously seek opportunities for communication and engagement with informal justice systems.
- Religious laws and customary laws can change over time to give effect to women’s access to justice, whether in response to internal or external factors or both.
- Women should be empowered and have a good understanding of their legal status and demanding their rights.
- It is important to build and expand strategic alliances between formal and informal systems to promote access to justice for women.
Contact
Nokukhanya (Khanyo) Farisè, Legal Adviser (Africa Regional Programme), e: nokukhanya.farise(a)icj.org
Tanveer Jeewa, Communications Officer (Africa Regional Programme), e: tanveer.jeewa(a)icj.org
Download
Universal-Webinars a2J women-Advocacy-2021-ENG (full report in English, PDF)
Universal-Webinars a2J women-Advocacy-2021-FRE (full report in French, PDF)
Universal-Webinars a2J women-Advocacy-2021-IND (full report in Indonesian, PDF)
Universal-Webinars a2J women-Advocacy-2021-DAR (full report in Dari, PDF)
Universal-ICJ The Tunis Declaration-Advocacy-2019-ENG (the Tunis Declaration, in PDF)
Universal-ICJ Congresses-Publications-Reports-2019-ENG (the ICJ Congresses booklet, in PDF)
Watch
The first webinar is available here.
The second webinar is available here.
Read also
The report on the Tunis Declaration is available here.
Cordaid, Diverse Pathways to Justice for all: Supporting everyday justice providers to achieve SDG16.3, September 2019, available here.
ICJ/Cordaid Webinar Series addresses the need for equal access to justice for women where religious and customary laws are in force, available here.
Jan 15, 2021 | Advocacy, Cases, Legal submissions
The ICJ and Amnesty International have submitted today to the European Court of Human Rights their intervention in the case of Judge Igor Tuleya who alleges that the seven disciplinary proceedings brought against him have affected his reputation as a judge and undermine the authority of the judiciary.
Judge Igor Tuleya contests that the disciplinary proceedings brought against him were in violation of his right to respect for private life and of his right to an effective remedy against violation of human rights.
The case takes place in the context of the “reform” of the judiciary in Poland, involving policy measures and legislative changes approved between late 2015 and 2020, which have seriously compromised the independence of the judiciary.
The intervention focuses on three main issues:
- The scope of application of Article 8 and Article 13 in cases relating to disciplinary proceedings against judges, in light of international standards on disciplinary proceedings and measures and effective domestic remedies; of the Court’s Convention jurisprudence; and of general principles on the rule of law and the role and independence of the judiciary.
- The situation of the independence of the judiciary in Poland as the context in which to assess the application of Articles 8 and 13.
- The scope of Article 10 as applied to judges, including those engaged in the administration of the judiciary.
ECtHR-AmicusBrief-Tuleya_v_Poland-Advocacy-Legal-Submission-2020-ENG (download the third party intervention)
