Is China’s (particularly Beijing’s) Restriction of Access to the Internet Actionable?

Yes, if the restriction to the internet access could be argued as a violation of Article 19 of the Universal Declaration of Human Rights, which states that “Everyone has the right to freedom of opinion and expression; this right includes the freedom to…seek, receive and impart information and ideas through ANY MEDIA REGARDLESS OF FRONTIERS (emphasis supplied.”)

How does the international community perceive the status of the right to [seek, receive and impart] information and ideas as a norm of international law? In the preamble of the Declaration, it is stated that “the advent of a world in which human beings shall enjoy freedom of speech and belief…has been proclaimed as the highest aspiration of the common people.”

The freedom of speech and belief referred to in the preamble could be inferred as the right to freedom of opinion and expression later in Article 19 of the Declaration, which is also declared later in the preamble as a “human right and fundamental freedom.”

The internet packet is a media where information and ideas are sought, received and imparted across frontiers, across jurisdictions. When China is reportedly restricting the internet access of its own constituents, and expanded its restriction towards non-nationals, China is violating a human right and fundamental freedom of persons situated in its territorial jurisdiction which is commonly referred to as the right to information.

To determine whether China is liable to the international community for violating such fundamental right, it is important to know who may enforce these rights. Thus, it should be inquired if the right is a customary or a conventional norm. States must follow a customary norm regardless of whether it has agreed to make the norm applicable to its own state because of state practice. On the other hand, only the contracting parties to the treaty are bound to apply a conventional norm in its country.

China may claim that it may limit internet access within its territory because it is a sovereign entity therein, and as for sanctions it will recognize its liability only to those states who had signed the Universal Declaration on Human Rights, which it will approximate to be 192 states or less, whose nationals had in fact visited Beijing and experienced restricted internet access.

But is the right to information conclusively a conventional norm simply because it is embodied in a Declaration or a treaty? The International Court of Justice (ICJ) in the case Concerning Military and Paramilitary Activities In and Against Nicaragua held that the fact that a [jus cogens] customary norm does not in any way cease to be a customary norm only because it had been embodied in a treaty.

So is the right to information a jus cogens norm? The US Constitution in its First Amendment had been the first to identify that the right to life is an inalienable right – it cannot be dispensed with nor derogated to the point of nullity. Other countries later followed suit in expressly declaring in their own constitutions that the right to life, aside from the other rights, cannot be alienated from the individual. And then there was the United Nations…

Arguably, the right to life could be said to encompass the freedom of speech. It can be pointed out that the freedom to say what one thinks is a manner or mode of living one’s life. If one is prohibited from expressing oneself through your one’s words in the manner that one deems best, he is in effect prohibited from living a part of his life. A man expresses himself through words and conduct. His word and conduct make up, and are not just a part of, himself.

Later on, as the principle of the freedom of speech developed, a compromise between the individual and the government evolved: such freedom of speech may be regulated by reason of public policy. The meaning of public policy is as ambiguous, amorphous and indeterminate as the concept itself.

The freedom of speech includes the “speeches” in written form. Speeches are ideas communicated by one individual to another. Such freedom is as old as civilization itself. How else could we explain the penchant for gossip in various forms, and the proliferation of web sites such as tmz.com? But of course, speeches are not only undertook to talk about the lives of other people in juicy situations. The freedom of expression of ideas had been valued by scientists such as Galileo Galilei, who will not recant what they believe to be true as told to them by their senses, and has immensely contributed to the state of Information, Communications and Technology today. Their ideas contributed to the creation of a wireless world, among others. Those ideas figured well to promote “social progress and better standards of life of larger freedom” as the Declaration states. Advocacies designed to make the world a better place to live in has reached a lot of people in the form of online petitions and of course, YouTube, to name a few. The circulation of information – ideas and opinion – is crucial to a person’s, and in turn the world’s, development. Either for better or for worse.

These reasons are not enough to claim that the right to freedom of expression and opinion is a jus cogens norm. The norm must be exhibited by state practice and opinio juris sive necessitatis or a belief of those who practice it that they are legally obliged to do so, as held by the ICJ in the case of the North Sea Continental Cases. But in the international arena, Beijing’s policy of restricting the fundamental human right of freedom of expression and has evoked sympathies from all over the world who feel that China is violating the human right of the Chinese to freedom of information. We can view this as evidence that most people in the world are of the opinion that the limitation of internet access is a violation of the fundamental right to information that is undeniable, inalienable, and illimitable.