Interpretation of the Concept of the Right to Internet Access from the Perspective of International Law
September 19,2016 By:CSHRS
Interpretation of the Concept of the Right to Internet Access from the Perspective of International Law
Liu Huawen YanYuting*
Abstract: The advent of the internet era breeds a new concept, namely, the right to internet access. Many countries and international organizations, as well as individuals， are advocating or have already embodied it as a basic human right, thus enhancing the issues of whether it should be incorporated into the macro system of international human rights. By analyzing the facts, this article points out that the international concept of the right to internet access should be distinguished from its domestic concept, for there are no legal sources about the right to internet access for guidance as with some treaties in the current international law, despite its close relationship with some existing rights such as the freedom of speech, press and assembly, or the right of equality, or the right to development. And there is still a long time before the legal value and related responsibilities as well as the boundaries about the right to internet access becomes a consensus in the international society. Even though there is quite a possibility, this right hasn’t been embodied as part of international human rights, and thus hasn’t made a legal concept in international human right law.
Keywords: Internet access, The right to access internet, The human rights, International law
Known as the special agency of the United Nations (UN) in charge of information and communication service, the International Telecommunication Union (ITU) released its Measuring the Information Society Report on November 24, 2014. According to this report, the number of internet users reached an incredible three billion by the end of 2014, a 6.6 percent increase from the same period the year before. This report declared that the global penetration rate of the internet has already reached 40%. “All these above point to nothing but the coming of the internet age.”1
As one of the greatest inventions of human society in the 20th century, internet has become a daily must-have for almost everybody，playing an increasingly important role in both daily life and social function. Against this background, many countries and international organizations regard internetaccess rights as one of the basic human rights, thus committed to the widespread use and development of internet literally and practically.
In August 2012, the Internet Society did a survey among more than ten thousand internet users from 20 countries, of which 83% users strongly agreed to legalize the right of internet access as a basic human right, with 13% on the opposite opinion.2
However, its legal concept, or namely, its concept of right, should be distinguished from what it is in the domestic law and the international law. Can the right to internet accessbe regarded as a basic human right? Or even if it is regarded as a basic human right in the domestic law, what position and situation is it in the international law? All these above call for further discussion. In this article, the author attempts to analyze the background information about the right to internet access as well as the development of its relevant legislation, mainly focusing on the source of law and the current situation in the international human rights law.
I. The right to internet access and the human rights
1. The concept of the right to internet access
The number of internet users has been increasing since the birth of the internet in the 1960s. The internet has covered almost every imaginable aspect of modern life. Its openness and interactivity make it possible for people to gain more resources at a much lower cost, meanwhile exchanging ideas and expressing themselves. The new fashion is the big heat of social networks such as Facebook and Twitter outside and WeChat and Weibo inside. Facebook, known as one of the world famous online social networks, has had its users increased from 150 million to a crazy 600 million according to the statistics.3 By means of these social internet sites, people can exercise their freedom of speech and expression actively, thus making it the most efficient method to widen citizen participation of public life, so as to transparencize information. Just as what HamadounToure, secretary-general of the ITU, has described, “Ever in history, the internet constitutes the most powerful potential source of enlightenment, and the government should put the internet as the basic infrastructure - just like water and waste treatment.”4
Even though the number of international internet users is over 3 billion, there are still 4.3 billion people who can neither access nor use the internet, 90% of which come from the developing countries. The communication technology alone with the infrastructures in these countries are far behind those in the developed countries, thus results the concept of the “international information gap”.5 Therefore, many international organizations, such as the UN Human Rights Council, either advocate or practically promote the widespread development of internet. They all hold that every country should make a free way for their citizens to access the internet. According to this background information, a new concept, namely, the right to internetaccess, was born.
As far as the author is concerned，the right of internet access hasn’t been accepted as a true mature concept or basic right with wide acknowledgement. What needs to be stressed is the vacancy of such a term in the current international human right law. This idea can roughly be concluded in practice or from scholarly opinions. In the Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue pointed out that even though the right to internet access hasn’t yet been regarded as an independent human right, in his opinion, the issue associated with the access to internet should include at least two aspects: the freedom of citizens to access and use internet without restrictions unless the international human right law otherwise requires, and the institutional safeguard from government of providing necessarily infrastructure as well as technological support.6 Therefore, under the discussion of what is included in the right to access internet, the government bears two types of obligations as negative obligations and positive obligations. Negative obligations include the obligation not to arbitrarily restrict a citizen’s access to the internet and the obligation not to impede the development of the necessary internet infrastructure and communications technology. Positive obligations include the obligation to promote the development of internet communication technology and the obligation to actively provide the necessary infrastructures for internet. Although these professional opinions are not legally binding, it still can be used as important references for the discussion of this topic.
2. The human rights and the right to internet access
Human rights generally refer to the legal rights that a person or a group enjoys based on human dignity. In modern society，it includes the basic right to create their own lives based on respect to freedom, equality, and dignity.7 The Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948 acknowledged that in the contemporary society, the maintenance and protection of human rights is universally recognized as the fundamental principle of international law. Based on this, the Vienna Declaration and Programme of Action of the World Conference on Human Rights adopted by the United Nations General Assembly in 1993 reaffirmed that it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.8 One important standard to judge a government or a society depends on its degree of human rights protection, as well as the breadth and depth of human rights development.9 With its universality and fundamentality, human rights are universally protected by the international society. Whether a right can be legalized as a human right, or incorporated into the domestic law or even the international law, depends on its management system as well as its protection system.
Even though this has been universally recognized, the cognition about human rights, including issues about its specific scope and contents, varies because of the different ideology, state system, and the level of development. Despite such conflicting issues, consensus has been reached on its universality of subjects and its freedom and equality of content. Human rights are also the essential function of state power, and should be protected by states. They are unity of the vested right, the actual right, and the legal right.10 Somebody holds that human rightsare vested rights which exist objectively, the law can only protect individuals and groups from government interference and offences formally.11 The human rights issues should be read from a more empirical aspect in the real life. Regulated by positive law, that is the domestic law or the international law, human rights become legal rights. Regulated by positive law, that is the domestic law or the international law, human rights become legal rights, which are not only the implementation mode but also the approach and condition of the vested right. Human rights, despite the fact they exist with little regulation of the law, can hardly be realized without the law. And the actual right refers to the human right that people actually enjoy. Only when it has been transited to the legal right, can human rights, which exist as a vested right, become an actual right.12 Human rights are regulated internationally by the International Human Rights Law, but when it comes to sovereign nations, they are managed by the States’ own constitution and law. Although there is no common sense about what concrete rights human rights may include, regulations in the International Human Rights Law are representative and inclusive, and the human rights they regulate are usually recognized by sovereign nations. In my opinion, we should discuss both the vested human rights and the legal human rights, especially with focus on legal human rights.
Consider the right to internet access in a human rights context, and we now suppose that it is a legal right in a democracy society, and obviously it has close relationship with the basic human rights below:
(1) Freedom of Opinion and Expression. Article 13 of the International Covenant on Civil and Political Rights has regulated civil freedom of opinion and expression: “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.” Nowadays, unlike traditional media, the internet allows people to seek, receive and impart information rapidly and with extremely low cost. Besides, beyond national boundaries and time limitations, the internet allows people to receive different information instead of the single resource from government, so that people can exercise the freedom of opinion and expression more actively and broadly. Now, the internet has already become an essential tool for people to exercise the freedom of expression.13 Therefore, the right to internet access can ensure people’s right to freely use the internet, which, as a new media tool, can be considered as a new development and new way of the freedom of opinion and expression in the internet era.
(2) Freedom of Assembly. In accordance with the International Covenant on Civil and Political Rights, Article 21: “The right of peaceful assembly shall be recognized.” Traditionally, freedom of assembly means assembly in a physical public area, such as an urban street or square. But after the appearance of internet, the network can be a new assembly area, as former American Secretary of State Hilary Clinton said: “The cyberspace has become a new assembly area for people in the 21st century.”14 The internet, especially social network as Facebook and Twitter, not only enables people to project with their voice by way of net topic, but also serves as a convenient and efficient communication tool for calling for and organizing people to assemble and parade.15 The typical example is “Arabic Spring”. The social network is one important factor in promoting its birth and development.16 Obviously, on one hand, right to internet access provides a convenience for people’s freedom of assembly, and, on the other hand, it can be used by political powers as a tool to generate social unrest and chaos.
(3) Right to equality. The International Covenant on Civil and Political Rights, Article 26: “The law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The internet provides many choices to people, so that people could choose other resources, instead of limiting those in their own region, to meet their basic needs. And limiting internet use and connection could deprive people’s right to choose other resources beside basic needs. As a convenient communication means and new media, the internet provides users unlimited choices, compared with the time when the internet had not yet appeared and had only a few limited choices. For example, online trading expanded the business transaction in reality, and online information sharing fills the “information gap”. People who can freely use internet have more chances than those who are limited or cannot use it and become less advantaged. Therefore, the right to internet access ensures the right to equality.
(4) Right to development. The right to development is the typical third generation human right advocated by the developing countries. In the International Covenant on Civil and Political Rights, Article 1, paragraph 1, it is stated: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” The popularity of the internet can develop the economy of developing countries. The Secretary- General of International Telecommunication Union, Mr. HamadounToure, believes that information technology (IT) and its relative technology have the potential to make a better world, especially to the poorest, weakest groups, including women, children and the disabled. Firstly, the popularity of the internet can accelerate the development of e-commerce and other online trading. Statistics show that every 10% improvement in the popularity rate of the internet brings a 1.28% to 2.5% improvement in the GDP of developing countries.17 Online trading is now an important push of countries’ economic development. Secondly, as a communication means, the internet can narrow the distance between marginal areas and developed areas, so that the economic and cultural development gap will not expand because of the information gap, which contributes to an unbalanced development between countries and even between different regions of one country. The right to internet access ensures people in less developed regions can reach to the internet, so that the development level of economy and culture between regions and groups can be balanced by the advantages provided by the internet and people can achieve self-development, that is what exactly right to development is.
There is a close relationship between the right to internet access and basic human rights, which are broadly recognized by many international laws. The problem is, if the right to internet access has already become a separate legal human right, will it be recognized and confirmed by international law? In this article, we should analyze the international law seriously rather than just make the consensus in one country or a few countries to become a global consensus.
II. The relative views and practice of the right to internet access
Since the appearance of the right to internet access, it has been closely linked to human rights. Many academics believe that the right to internet access should be considered as a basic human right, and in some countries, this view has been supported by national laws and political practice. It seems that including the right to internet access as part of the international human right framework is the direction of some international organizations.
1. Opinions of specialists and academics
One of the first specialists to advocate that right to internet access is a basic human right is Viviane Reding, the commissioner of the EU, who works about information society and media and advocates for unifying the popularity of the internet and the telecommunication market. With Reding’s hard work, the EU has come out with many reform policies to promote the development of internet and broadband, and also to reduce the telecommunication fees. When she tried to convince the European Parliament to legislate for the right to internet access, she said: “(T)he new rule has confirmed internet access is a basic right as freedom to expression and information access. Therefore, under this rule, any relative services and applications shall respect all people’s basic rights and freedom.” On November 13, 2007, the European Commission has submitted the amendment of Telecommunication Law to the European Parliament in Strasbourg, France. This amendment was drafted by Viviane Reding, who emphasized the protection of telecom consumers’ rights in a news conference of preliminary meeting.
At an MIT symposium, the “father of the internet”, Tim Berners Lee, suggests that the right to internet access shall be considered as a basic human right. He believes that since the right to access water is an important basic right, because people cannot live without water, therefore web access shall also be a human right, because people who cannot access the web shall fall behind the ones who can. He believes that it’s possible to live without the web. But the difference between somebody who is connected to the web and is part of the information society, and someone who is not is growing bigger and bigger. Tim Berners Lee made this comparison at an MIT symposium event entitled “Computation and the Transformation of Practically Everything” on April 12，2011.18
On August 27, 2013, the CEO of Facebook Mark Zuckerberg announced that Facebook and other tech companies like Ericsson, Nokia, Qualcomm, and Samsung have established an organization together named “Internet.org”, which integrates the resources of tech companies for the purpose of allowing everyone in the world to enjoy the internet, and then to achieve global network interconnection eventually. When he talks about the importance of this organization, Zuckerberg said “access to the internet” is a human right.
2. National legislation and policies
Nowadays, a few countries have already regulated the right to internet access as a citizens’ basic right. Finland has first written this right into its constitution. Since 2008, the Finnish government has endeavored to popularize internet and improve the living standard of people in marginal areas, as well as to promote the economic development of these areas. In October 2009, the Finnish government officially confirmed “broadband access” as a basic human right. On July 1, 2010, Finland officially revised its constitution and become the first country in the world to confirm through legislation the right to internet access as a legal right.19
Subsequently, in Estonia, France, Greece, Costa Rica and Spain, the laws have also incorporated the right to internet access of citizens. In Estonia, the parliament launched a major project to expand the range of internet access in rural and other remote areas in 2000. The government believes that the internet is a must for people's lives in the 21st century.20 In France, in June 2009, the constitutional council of the French Supreme Court made a strongly worded declaration that access to the internet and using the internet were basic human rights, in a negative decision of President Nicolas Sarkozy’s internet bill. According to this decision, freedom of communication is a fundamental human right while the internet is an important tool for communication.21 In Greece, its Constitution has explicitly prescribed that the state has the obligation to protect people’s right to internet access in Paragraph A of Article 5.22 In Costa Rica, the Supreme Court expressed in a judgment in July 2010 that the internet is a significant tool to achieve a series of human rights, and people’s fundamental right to internet access shall be guaranteed.”23 In Spain, since 2011, the law has guaranteed affordable broadband services to citizens.24
In legislation, the emerging "Network Neutrality" principle in recent years, advocating for creating equal access to internet service for everyone, is helpful to establish a more open and equal internet. The so-called Network Neutrality means that within the range of law and based on their own choice, all internet users can gain access to internet content, run applications, access devices and select the service provider.25 This principle requires equal treatment of all internet content and access to prevent service providers from controlling data transmission priority only out of their commercial interests, so that the "neutrality" of data transmission can be guaranteed. The United States was the first to start legislative process for network neutrality. On October 23, 2009, the United States Federal Communications Commission (FCC) decided to begin drafting "network neutrality" regulations to prevent cable companies from abusing their control over the broadband access market.26 On October 28, 2015, during the plenary session of the European Parliament held in Strasbourg, France, a resolution was passed by vote that the EU would cancel mobile phone roaming fees from June 15, 2017. Since then, Europe has become the only region with legislation to protect internet openness and "net neutrality".27
As for domestic policy, although the United Kingdom, the United States, and China have not expressly prescribed the right to internet access into legislation, they have all made specific commitments to promote the penetration of the internet. The British Government has promised that from 2012, the broadband internet access speed in every home will be up to 2 megabits per second; the US Federal Communications Commission has also promised to make all American citizens enjoy internet services; and, likewise, Chinese State Council Information Office has also made a commitment in the white paper-- 2010 China's Internet Situation -- that in the following five years, China's internet penetration rate will reach 45%. At the same time, the trend of increasing restrictions on the use of the internet is as well very clear. The “Green Paper” of the EU, the American "Communications Decency Act" (referred to as CDA), and the Children’s Online Privacy Protection Act (referred to as COPPA, also known as CDA II), and other attempts are all trying to impose restrictions on Internet use.
The "Green Paper" of EU refers to the Green Paper of the European Commission about connected TV of April 26, 2013, in which the connected TV is not exactly the same as the Internet TV in our country, but including hybrid broadcasting broadband TV, such as HBB TV. In HBB TV the "broadband" can be connected either to the internet or to the operator's "IP network" platform. A Green Paper entitled "Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values" was released with the intention to do pre-project research for developing the related rules of connected TV. In this Paper, chapters of "Values" sections are about networking content regulation issues, advocating for the networking content restrictions to protect minors.
American "Communications Decency Act" and the original "Children's Online Privacy Protection Act" have been successively ruled as unconstitutional by the US Supreme Court. The Court has ruled that they violated the First Amendment which protects the freedom of speech, press, assembly and petition. The First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Americans regard the first amendment as the document with supreme legal effect, believing that no legal value shall be higher than, or derogate the foundation status of freedom of speech.
As for foreign policy, Internet issues often become a tool of American human rights diplomacy. In 2002, Saudi Arabia blocked over two thousand sites on grounds of religious control, and countries with the United States as a representative, claimed that this action was a "gross violation of human rights."28 In 2006, the US State Department announced brazenly that it "will take action against the restrictions on the use of network in some countries, because the US believes that access to information is a basic human right of each country." And the US State Department formed a "Global Internet Freedom Task Force", responsible for special inspections on the situation of foreign governments using technology to track and suppress dissidents or to limit online political content. According to reports, the US may also take legislative action to condemn internet control policies in other countries (such as Iran, Cuba, Vietnam, Myanmar and Saudi Arabia, etc.).29
It is thus obvious that, in the law or policies, either of many countries or even of a number of regional organizations,the right to iInternet access has been legalized and institutionalized, sometimes being called as a human right, or even occasionally as a basic human right, but at times it is under the banner of human rights to engage in human rights diplomatic or to exert political pressure on other countries. However, it is still unclear as to what are the specific details, where the boundary is, or what is its legal nature.
3. Related activities of international organizations
In December 2003, according to the United Nations General Assembly resolutions, the International Telecommunication Union and UNESCO jointly hosted the World Summit on Information Society (referred to as WSIS). In the early Geneva session, WSIS adopted the "Declaration of Principles" and the "Plan for Action", declaring to establish a knowledge-sharing information society for all, and reached some principles on consensus: Everyone can create, access, utilize and share information, and enjoy freedom without interference. In strengthening the internet governance process, governments should respect and protect all relevant fundamental human rights, including freedom of expression, the right to development and the right to information.30 It can be seen that we can talk about the internet access within the framework of existing rights.
In May 2011, the United Nations Special Rapporteur on the promotion and protection of freedom of expression and opinion Frank La Rue submitted a report on the protection of freedom of speech in the new era of communications, respectively, to the 17th session of the Human Rights Council and to the 66th session of the General Assembly, believing that the internet can promote economic, social and democratic development, and contribute to the overall progress of human society. Moreover, the nternet has greatly expanded the ability of individuals to exercise the right to freedom of expression and opinion, while such freedom is a strong impetus to realize other human rights. Therefore, the Special Rapporteur emphasized that apart from exceptional circumstances clearly defined in international human rights law, for whatever reasons, interruptions of citizens’ internet connections are violations of international human rights law. The report concluded that the internet was an important tool for people to exercise the freedom of opinion and expression, the right to development and other fundamental human rights, and imposing unreasonable restrictions on the internet could easily lead to human rights violations and the of breach international human rights law.31 But it is worth noting that throughout this expert report, with a certain degree of authority, there is no explicit expression saying that right to internet access is directly equated with human rights, but only that the internet is an important tool for achieving a series of human rights, including freedom of expression.
III. Right to internet access is not a legal human right in international law
As mentioned above, there have been numerous international practice attempts trying to incorporate the right to internet access into current international human rights framework. However, currently the right to internet access is not yet a legal human right, and not yet enough to be considered as a basic human right.
But we must recognize that the human rights system cannot be considered a static and fixed system forever, because its codification is a continuous development and a never-ending process, both in the domestic and international environment. However, human rights, after all, are a legally well-structured universal set of normative standards.32 Sovereign states give legally binding force and state guarantees to human rights through adopting domestic laws or signing international treaties, voluntarily taking human rights as a fundamentally important standard which shall be observed by the national public authority. Thus, for the identification of human rights, we should adopt an extremely cautious attitude. Formally, international common standards for human rights require universal acceptance from the majority of sovereign states.
1. The lack of legal source of international law
International human rights law is a branch of international law, and as a cross-cultural law, it can be taken as a common yardstick for human rights protection from the international community, i.e., a common human rights standard that is universally recognized by sovereign states is a basic presence of general characteristics of human rights in the field of international human rights.33 International treaties are the most definite and important legal source. The existing international treaties concluded between states and domestic laws that are enacted accordingly are the most powerful and clear evidence to prove whether a certain right belongs to human rights or not. From the view of international law, whether it is confirmed in the international treaties, however, is the most direct way to prove a certain right especially the rising rights. Customary international law, another form of an important legal source of international law that requires continuous practices and constant opiniojuris by each country to prove, can hardly be fitted into the concept of right to internet access. This is because there are no clear and constant behaviors or consensus reached on the sense of legal subjective norms, i.e., the right to Internet access should be taken as a legal human right both in national law and international law.
In the aspect of international treaties, there have been over 50 declarations relevant to human rights and 48 related treaties since the founding of UN, and Charter of the United Nations，Universal Declaration of Human Rights，International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights are the most authoritative human rights documents. Besides the aforementioned important legal source of human right, there are representative regional human rights law systems such as European Convention for the Protection of Human Rights and Fundamental Freedom, American Convention on Human Rights, African Charter on Human and People’s Rights as important reference documents for legal human rights as well.
Some scholars believe that it is a response to a specific threat or act of repression,34under the precondition that such threat has violated a certain kind of right and which is very pressing.35 At this point, once decision-makers believe that the significance of violated rights are such that it should be written into the domestic constitution or international human rights treaties, then it will be recognized as a human right.36 For example, the right to religious freedom was produced in response to Europe's powerful Catholic church domination and the wars of religion and government repression thus followed. The most typical thought of “natural rights” in the human history is another way of producing human rights, and the widely recognized common ethics norms in human society can be formed through prevailing national legislation on the basis of prevailing practice and opiniojuris within the way that is similar to the formation of customary international law.
In terms of human rights, there are no authoritative international treaties or national legislation that proves the status of the right to internet access as a kind of human right combined with the circumstances of national legislation and international treaties summed up in the previous text. In terms of the international treaties, first of all, "Declaration of Principles" and "Plan of Action" passed in World Summit on the Information Society are “soft laws” which are not legally binding and only reflect the opinions and intentions of these two subsidiaries of United Nations and participating countries to some extent, which cannot be counted as the formal sources of international human rights law. Secondly, reports delivered by a Special Rapporteur from the most closely watched United Nations Human Rights Council only represents the personal opinions of experts from the United Nations, and the United Nations Human Rights Council only decides to give constant attention to this report and requests to continue to review ”questions on how to make the Internet an important tool for development and the exercise of human rights”. Neither the Rapporteur himself nor the United Nations Human Rights Council has yet expressed their stance as to whether to treat internet access as an independent statutory right or not.37
The whole article did not request to grant internet access the status of human rights but emphasized the important role of internet on the realization of the human rights. Thirdly, in the aspect of the national laws, the above-mentioned countries such as Finland, Estonia, Greece and Spain have written the right to internet access into their constitutions as a citizen’s basic right, but countries that have done so are rare in number. From the global perspective, most countries have not taken the right to internet access into legal framework in the real sense, and it is not even a statutory right to use and connect to the internet in some of the countries. Countries like the UK and US have always been stressing on the importance of freedom of connecting to the internet and its popularity and even condemned other countries for human rights issues hereof though, these countries themselves seemed not to have given definite legal confirmation to the right to internet access. The right to internet access can exist in the form of basic right in few countries where relevant constitutional stipulations can be found. However, it may be a grinding work for making the right to internet accesses a widely recognized human right.
2. Generalization tendency of human rights and prudent attitudes of human rights law
As the concept of human rights and human rights institutions shows strong appeal, many people are trying to ascend their political demands or other concerning matters to the height of human rights. Identifying the human rights according to its actual conditions based on regional differences is beyond reproach. Nevertheless, it is inappropriate to interpret non-statutory rights as statutory rights or discuss statutory rights, stipulated in the national law of one country or some countries, in the name of legal rights in this country, outside these countries or even in the international community while neglecting legal definitions and boundaries.
Discussions of the legal field and the performance of the legal mechanism requires strict legal foundations and special technical definition and guarantee of legal field. The imposition of incomplete or institutionalized concept into the framework of human rights will give rise to concerns like generalization of human rights, or so called Human Rights Inflation.38
From the view of the realistic operability, it takes costs to integrate the right to internet access into the international human rights protection system. The right to internet access has set negative and positive duties, requiring the government to provide infrastructure and support of communication technology proactively. These duties are not difficult to complete in developed countries, but it may overburden certain states or governments which are under special phase to perform these duties with qualification in the developing countries or poverty-stricken regions where the popularity and development of internet is most needy.
What is more important is how to define state actor or non-state actor such as negative duties related to internet companies and how to reasonably and legally bind and restrict the citizen’s behavior of internet access. Whether an international consensus can be reached as soon as possible remains to be seen as actors from different states and regions may have different opinions. Therefore, whether and when the right to internet access will be integrated into a system which guarantees human rights based on the international law remains an unanswered question.
In the future, it is entirely possible to write the right to internet access into international human rights law to varying degrees. It even seems natural to many people. At least temporarily, the right to internet access, however, is no more than a derivative question and relevant concept that is closely connected with realist basic human rights and it is not a definitely established legal concept in international human rights law. The abuse of legal concept on international occasion will only bring about misreading and misunderstanding, which causes damages to seriousness and authority of international law.
Internet access plays an increasingly important role in human life, and connecting and access to the internet contributes to the exercise of a series of basic human rights such as freedom of opinion and expression, freedom of speech, freedom of assembly, right of equality, and the right to development. Some international organizations, countries and individuals are calling for recognizing the right to internet access as a basic human right. Despite reasons for supporting the idea that the right to internet access should be regarded as a human right, there is no mature, prevailing legal source of international human rights law for the right to internet access in a strict sense if it is strictly and empirically analyzed as it appears only in national laws of some countries, and soft documents of regional organizations and special agencies of the United Nations.
Human rights will be enriched with social progress and so the right to internet access may be a civil right within the national law system, and it may also gain legal status gradually in regional human rights law. However, to be a statutory right in the universal international human rights depends on the human rights values it involves and the consensus to be reached on positive and negative duties between governments and other actors. We are delighted to see the days when it is realized and keep a positive attitude towards that.
However, oughtness differs from being. Thinking the right to internet access may be or ought to be legal human right is obviously different from believing the right to internet access is legal human right. The national law concept and international concept of human right should be distinguished when discussed on the international occasion. In fact, the Special Rapporteur Frank Laros of the promotion and protection of opinion and freedom of speech dealt with this concept in this way in the previous report. This shows that generalization of the scope of human rights cannot be taken for granted and the development of international human rights law is dependent on legal practices, including the process of international legislative practice.
* Liu Huawen(柳华文), executive director of the Research Centre for Human Rights, CASS, and Research fellow of the International Law Institution, CASS；Yan Yuting（严玉婷），master degree candidate of Graduate School, CASS.
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3. UN Human Rights Council (2011)，Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression，Frank La Rue.16 May 2011, A/HRC/17/27, para.2. Retrieved from http://www.ohchr.org/ english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf, latest visit on November 4，2015.
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5. See M.Warschauer，Technology and Social Inclusion：Rethinking the Digital Divide，Cambridge：MA：MIT Press，2013，p.22.
6. A/HRC/17/27，supra note 3，para.2.
7. See Manfred Nowak，Introduction to the International Human Rights Regime，Leiden：MartinusNijhoff Publisher，p.1.
8. See http://www.un.org/chinese/esa/social/youth/vienna.htm，latest visit on 4 November 4，2015.
9. See Universal Declaration of Human Rights, United Nations General Assembly Resolution 217A(III), Preamble.
10. See Basic Issues on the Human Rights, Chinese Communist Party School Press edited by Zhang Xiaoling, 2006.
11. See The Jurisprudence Research on the Human Right Issues, edited by Wang Qifu and Liu Jinguo. China University of Political Science and Law, 2003 edition, P. 159.
12. See ZHANG Aining (2006) “On the International Human Rights Law”, China: Law Press, p. 9.
13. Jenny Wilson，“United Nations Report Declares Internet Access a Human Right”，TIMETechland，http：//techland.time.com/2011/06/07/unitednationsreportdeclaresinternetaccessahumanright/，visited on November 10，2015；See also David Kravets(June 3，2011)，“U.N.Report Declares Internet Access a Human Right”，http：//www.wired.com/2011/06/internetahumanright/，visited on November 10，2015.
14. See Douglas Rutzen and Jacob Zenn，“Association and Assembly in the Digital Age”，http：//www.icnl.org/ research/journal/vol13iss4/art_1.htm，visited on November 10，2015.
16. Vinton Cerf，“Internet Access Is Not a Human Right”，http：//www.nytimes.com/2012/01/05/opinion/internetaccessisnotahumanright.html，visited on November 10，2015；see also Jillian York，“Middle East Memes：A guide”，http：//www.guardian.co.uk/commentisfree/2012/apr/20/middleeastmemesguide?INTCMP=SRCH，visited on November 10，2015.
17. http：//ahumanright.org/，visited on November 10，2015.
18. http://www.huffingtonpost.com/2011/04/13/berners lee internet access human right_n_848833.html，visited on November 7，2015.
19．Don Reisinger，“Finland Makes 1Mb Broadband Access a Legal Right”，CNet News，14 October 2009，http：//www.cnet.com/news/isinternetaccessafundamental right/，visited on November 7，2015.
20．Colin Woodard, "Estonia, Where Being Wired Is a Human Right", Christian Science Monitor, 1 July 2003, http://www.csmonitor.com/2003/ 0701/p07s01woeu.html, last visited on November 7,2015.
21．Top French Court Declares Internet Access 'Basic Human Right' ", London Times (Fox News), 12 June, 2009, http://www.foxnews.com/story/2009/06/12/top french court declares internet access basic human right.html, visited on November 7, 2015.
22．"Constitution of Greece" (As revised by the parliamentary resolution of May 27th 2008 of the VIIIth Revisionary Parliament), article 5 (A).
23．Judgment 12790 of the Supreme Court", File 09 013141 0007 CO, Supreme Court of France, 30 July 2010.
24. Sarah Morris, "Spain got to guarantee legal right to broadband". Reuters, 17 November 2009, http://www.Reuters.com/article/idUSLH 61554320091117, visited on November 7, 2015.
25. See E.Huizer, "Network Neutrality", Social Science Electronic Publishing, 10 (2008), pp. 323350.
26. http://www.cnbeta.com/articles/402353.htm, last visited on December 15, 2015.
27. http://sky.cssn.cn/hqxx/bwych/201510/t20151029_2549730.shtml, visited on December 15, 2015.
28. C Wearden, "Camera Phones get the chop in Saudi Arabia", http: //news.zdnet.co.uk/story/0t269s2123120,00.html, last visited on 4 November, 2015.
29. See Xiao Fang: "Survey On China Network Management Situation", on the 10th issue in 2016,"Phoenix Weekly".
30. See "Declaration of Principles", WSIS03 / GENEVA / DOC / 4E, World Summit on the Information Society, Geneva, 12 December 2003.
31. A / HRC / 17/27, supra note 3, para. 67.
32. "Introduction to the International Human Rights Regime".supra note 7, p. 2.
33. See Vincent R.J., ‘Human Rights and International Relations’ translated by Ling Di, Huang Lie, Zhu Xiaoqing, Knowledge Publishing House, 1998, P 70.
34. “Introduction to the International Human Rights Regime”, supra note 7,p. 3.
35. See Brian Skepys，“Is There a Human Right to the Internet?”， Journal of Politics and Law，Vol.5，No.4 (November, 2012)，p.16.
36. “Introduction to the International Human Rights Regime”.supra note 7，p. 3.
37. United Nations General Assembly (2011)，10 August 2011，A/66/290. Retrieved from http：//www.un.org/zh/documents/view_doc.asp?symbol =A%2F66%2F290&Submit=%E6%90%9C%E7%B4%A2&Lang=C, visited on December 15，2015.
38. “Is There a Human Right to the Internet?”. supra note 32，p. 23.