Secret justice? – ‘A Local Authority and H’

Picture the scene if you will…

Witnesses and evidence suppressed…..

Judgments given without parties present…..

Case reports redacted…..

Injunctions issued to prevent public disclosure of party names or case circumstances…..

Case, court and party locations censored…..

Parties deprived of basic human rights and liberty without being given the reason at the time of the judgment…..

You would be forgiven for thinking that I am describing the infamous star chamber (1) court abolished in the 16th century, or perhaps a post ‘war on terror’ case involving the security services, espionage, terrorism or other issues of national security under which secret trials far too often today take place.

You would however be wrong…..

I am in fact talking about the Court of ‘Protection’ (2) a court created under the Mental Capacity Act 2005 (MCA) (3) with jurisdiction to rule on the administration of property and other personal affairs of vulnerable persons deemed by the court in accordance with the MCA to lack the mental capacity to make decisions for themselves, with many cases being brought by local authority social services departments.
In the years since its creation, this court has been heavily criticised both from within (4) and from out-with (5) regarding its apparently secretive methods, highlighted particularly by the fact that many cases go completely unreported, and those which are reported are often heavily anonomised and censored.

Such were the circumstances on the 27th January when the Court handed down the heavily censored judgment in the case ‘A Local Authority and H’ (6) of which even the case name tells nothing, not even the name of the local authority which brought the case. Due to its subject matter, this is a case with potential to generate controversy if not over the secret nature of the proceedings, certainly over the content of the judgment, the essence of which is that ‘H’, a 29 years old autistic woman with mild learning difficulties and an alleged IQ of 64, has effectively been banned by the court from engaging in sexual activity.

Due to the nature of the case, and thanks to the court order, this constitutes the full extent of which the report identifies the parties, and other than the names of solicitors and advocates presenting, nothing else is given to substantiate the identity of either party, or the geographic location where the case circumstances occur. No one can report anything on the case other than that information released in the heavily censored report without committing a contempt of court, making it very difficult to form any opinion on the case itself, its background and impact.

What the report does show and the core case facts are that H is highly sexualised with a long history of sexual promiscuity as recorded by the social and psychiatric services in the case, facts which are due largely to H’s alleged diminished mental capacity (7). This diminished capacity finding based on H allegedly not understanding how to say no and not understanding the risk of sexually transmitted infections leaves H incapable in the courts mind of consenting to sexual activity, facts which have seemingly led to H being exploited and abused sexually over the years, including an attempted rape in 2003.
In order to enforce the ruling, H is under 24 hour care and is not allowed to leave care alone despite having previously enjoyed part time employment. Additionally anyone who attempts to engage H in sexual activity is open to prosecution for a rape offence.

Clearly, this ruling represents not only a significant deprivation of H’s liberty, potentially in contravention of Article 5 of the European Convention on Human Rights (8) (ECHR), but it also represents significant infringements of what many would consider her natural human right to autonomy of person, self determination, and of her rights under Article 8 ECHR to respect for private and family life. There is no mention whatsoever in the case report of any consideration of Convention rights or the Human Rights Act 1998 which enables direct application of convention rights under English law.

This however may not be an issue given that the MCA was amended in 2007 by the Mental Health Act 2007 to include what are known as the Deprivation of Liberty Safeguards (9) intended to ensure that any deprivation of liberty under the MCA is in accordance with the meaning of Article 5 ECHR which includes under Art 5(1)(e) an exception allowing deprivation of liberty regarding those of ‘unsound mind’.

It seems possible therefore that the judgment is rightly in accordance with human rights law. This however does not make me feel any easier about the case; indeed the point of this article is not to analyse and balance the finer points of mental health and human rights law, but to highlight what I find to be the more questionable aspects of the judgment of broader concern.

Firstly, the case demonstrates the application of an oddly negative method of ‘protection’ involving the removal of rights rather than their reinforcement, which arguably could be seen by some almost as an indirect punishment for suffering a mental illness (10) (although it is clear from the judgment that this IS NOT the intention of the court, and I am not suggesting that it ever is).
such removal of rights does however appear from the bare facts in this case to be the path of least resistance, particularly where the reason for the protection order is to prevent H from exploitation, sexual assault and potential illness, but without any possible alternative solutions being considered. While the intention to protect H from such circumstances is positive, never-the-less the circumstances to be protected from are not the fault of H but are instead the fault of the morally questionable and potentially criminal intentions of others who would exploit her.

Yet H is the one to suffer curtailment of her rights because of them.

The MCA itself requires ‘the least restrictive approach’ to be adopted in protection orders; I am not convinced in this case that some other form of protection could not have been considered rather than H being forcibly subjected to what amounts to ‘shut in’ conditions. If she is already under 24 hour care, surely it must be possible to ensure some less restrictive form of monitoring of potential relationships other than a line being drawn over which H may not cross.

Secondly there may be problems with the longevity and scope of the order.
The case report states that the situation regarding the protection order is to be monitored for change in accordance with the continuing education of H regarding relationship issues; however the report also suggests that H’s condition is unlikely to improve in the short term (para 32) which in turn suggests that the deprivation order could continue indefinitely.

This could therefore become an unacceptable situation given that it would have enormous impact on the ability of H to even have the opportunity of forming any type of relationship other than with her carers. The fact that H is stated to have part time employment amongst other things shows enjoyment of some of the rights of adulthood; she is also stated at para 5 to have only ‘mild learning difficulties’ suggesting that while she may have problems, they may not be of a type to rob her of adult understanding. Clearly H is not a child, and should not be deprived of life and treated as such.

There are also questions regarding the wider implications of the order on H’s liberty. The court considered as per paragraph 33 on the issue of whether H had the capacity to marry, but declined to rule on this issue despite explicitly recognising a close connection between sex and marriage and that H would also therefore likely lack the capacity to marry. It would be preferable if they had gone on to rule on this point, the fact that they did not suggests avoidance of a potentially even more controversial ruling, regardless of the fact that the current ruling would in any event probably prevent H from ever being in a position to pursue any form of relationship or marriage.
The ruling therefore has far wider implications on H’s liberty than merely stopping her from engaging in sexual activity.

Lastly I have problems with the overt secrecy of the case. The fact that no one other than the lawyers and the court can be identified is troubling. It is entirely understandable why the case is redacted, it is a case of highly private implication for H. However given the nature of the decision, it is arguable that a court with the power to make deprivation of liberty orders under such circumstances should be more open to public scrutiny, particularly where as stated atPara19 there is no appeal from the courts decision.

It also seems right that when judgment is handed down in such important cases, case parties really should be present and given the reasons why the orders are being made, which in this case didn’t seem to be considered a necessity as indicated by the following passage:

‘On 15 December 2011 I made an order declaring H’s incapacity in many respects and making best interests declarations as to her future care. In particular I made an order declaring that H lacked capacity to consent to sexual relations and a consequential order to protect her best interests which was very restrictive and undoubtedly amounts to the deprivation of liberty. In those circumstances I reserved my reasons for making these orders with a view to handing them down without the need for attendance of any party. This I now do’

Clearly the orders against H were made more than a month before reasons for them were even given, and even then none of the parties were deemed as of significant enough importance to be given reasons at the time, or to be personally in court at the later date to hear the reasons when handed down.

In conclusion, I do not think there is anything wrong in principle with having a court empowered to make reasoned decisions for the protection of those who cannot decide for themselves, and in the case of H there seems good reason for the orders based on the case report which explains the abuse she has suffered in the past.
However given the bald nature of the report and the lack of detail, particularly regarding the expert evidence upon which the judgment was based, the decision itself in terms of procedure, secrecy and indeterminate scope is open to further questioning.
Clearly the secretive nature of this court and the methods by which it conducts its business, while possibly necessary to protect those the subject of its decisions, do severely work against it in terms of certainty and trust.

Mike Farrell, February 2012.

Footnote Links:

1. http://bit.ly/YFjkp
2. http://bit.ly/xcvoE2
3. http://bit.ly/a1Y5dW
4. http://bit.ly/tH3ngo
5. http://bit.ly/t9OFEe
6. http://bit.ly/A2Y0on
7. http://bit.ly/yMbeuT
8. http://bit.ly/1a5Dtz
9. http://bit.ly/zNG5UX
10. http://bit.ly/Ak2pYQ
11. Additional news report on case http://tgr.ph/zOmgXM

We Believe That The Time Has Come For Syrian Intervention

‘We Believe That The Time Has Come For Syrian Intervention’ is an open letter on the current situation in Syria with regards to the continuing massacre of Syrian citizens by the Syrian government, written by Harry Langford and undersigned by numerous individuals including LawBlogOne. Please visit, read and add your name to the letter by contacting the writer Harry Langford. Text of letter and all contact information available by clicking the following link, or clicking on the above picture.

We Believe That The Time Has Come For Syrian Intervention.

Thanks.

Death penalty USA – News from Texas; the Rodrigo Hernandez case

Written by Mike Farrell in collaboration with Juliette Frangos.

This week on Thursday 26th January after 6 p.m. the state of Texas is scheduled to execute Rodrigo Hernandez by lethal injection, the first execution in Texas this year that looks likely to go ahead pending last minute appeal.

Case Background

Hernandez was convicted in 2004 of the 1994 kidnap, rape and murder of Susan Verstegen, an act following which he attempted to conceal the victims body in a 50 gallon drum.

Unfortunately during the original investigation a lack of evidence meant that the case went cold, remaining in limbo for 8 years. However when Hernandez was later imprisoned in Michigan for an unconnected offence, and on release in 2002 legally compelled to give a DNA sample for the national DNA database, his sample was matched with unidentified DNA samples recovered from the Verstegen case also on the database. Hernandez was then arrested and charged with murder.

On questioning he gave a detailed confession to the murder claiming to have been under the influence of drugs and alcohol at the time. He was subsequently found guilty on trial in Bexar County, Texas, and sentenced to death in April 2004, allegedly showing no remorse. He has been on death row since.

In light of the confession, DNA and the absence of any evidence that  the trial was flawed, there is nothing suggesting the conviction was unsafe, and it is therefore not in question, Hernandez deserves to be punished. Only the capital sentence is in question here.

Since conviction, Hernandez has made numerous appeals against sentence, including applying for a writ of habeus corpus to the Texas State Criminal Appeals Court and the Supreme Court, all of which have been rejected. Appeals continued this month up until the 23rd January, again without success (A full procedural history is here).

Therefore pending any further appeals or last minute stays between now and Thursday night, sentence is on course to be carried out

Capital punishment – Texas

Texas is far and away the most prolific proponent of capital punishment in the USA (see also here), averaging more than one execution per month, more than twice the rate of any other state. Texas has also conducted 477 executions since 1976, more than 4 times that of the next most prolific states, Virginia and Oklahoma.

These are extraordinary figures, especially considered against other states such as California which has a much larger death row population, and yet has undertaken only 13 executions since 1976.

The high number of executions in Texas may of course largely be explained by the republican / conservative background of that state, a political outlook which traditionally leans to capital punishment. There may be other reasons some of which can be considered here which relate to the history and constitutional makeup of the state with regard to elected appellate judicial office. Whatever the reason, the figures appear excessive, and regardless of public or political support capital punishment is rightly becoming more unacceptable as indicated by the recent positive moratorium on capital punishment issued by the Governor of The state of Oregon. In addition, Texas is not the only republican state in the USA, so something or someone else may be responsible.

The Governor

In the ten years that he has held office, Rick Perry as Governor of Texas has authorised and overseen the largest number of executions in the history of the USA for a single Governor, more than 230 executions in the last decade, almost half the number of executions that have occurred over the last 35 years in Texas, indicating a marked and certainly questionable acceleration of capital punishment over a decade. He is known for radical views on capital punishment, gun ownership, same sex relationships and religion and has in the past vetoed a ban on the death penalty for mentally retarded inmates.

He recently launched a presidential campaign, but withdrew in January 2012 following widespread criticism of a homophobic video that he released to ‘support’ his campaign.

With regards to capital punishment, Mr Perry claims not to lose much sleep over it, has stated that he has no problem authorising capital sentences to be carried out, and has never worried that Texas may ever have executed any innocent persons. This in itself is quite disturbing given the reported case of Cameron Todd Willingham, executed in 2004 for the alleged murder of his three daughters in what was claimed at the time to have been an act of arson on his own home. Following Willingham’s execution however it was discovered and reported that in fact there was no evidence of arson at all, bringing the entire trial, conviction and sentence sharply into question.

An investigation was carried out, but just prior to it reporting, the chair of the committee undertaking it was replaced by Perry, an act which effectively cancelled the inquest, and swept the entire affair under the carpet.

The question however remains; was an innocent man executed, and if so, wouldn’t this case have raised an irrefutable argument against continuing capital punishment in Texas? The possibility that it may well have been is argument enough to support an end to capital punishment in Texas and elsewhere. Instead however it appears that the Governor would rather bury the case in favour of his own personal political stance.

The Texan method

Texas like many other capital states of the USA currently advocates lethal injection as its preferred method of  supposed humane executions of death row inmates. Please see link above for the full procedure, which in brief involves the following:

• Hernandez will be transported from his death row facility to the execution unit at Huntsville.
• He will undergo a strip and cavity search, before being confined in a holding cell.
• He may be allowed family visits during the morning.
• He will be offered a last meal but will have no choice in what is offered.
• After 6 p.m. he will be led to the execution chamber, prepared and secured to a gurney.
• Intravenous catheters shall be inserted into a suitable vein in his arm or elsewhere in his body.
• Witnesses will be brought in including victim witnesses, his own family if attending, and select media representatives.
• The execution will be authorised to proceed.
• Hernandez will be allowed a brief final statement.
• The drug team will be instructed then to administer the sentence, with drugs being administered in sequence.
• The condemned would be expected to be confirmed as medically dead in about 7 minutes from the beginning of  the injections.

This method of execution has long been considered humane by some, however it has generated much controversy, including:

• A scandal throughout the European Union where it was found that capital states having exhausted their own supplies of the death drugs used for capital sentences were illicitly importing large quantities from Europe, a practice the EU is now apparently seeking to prevent. Some companies took it upon themselves not to supply their products while they were being used for capital purposes.
• The fact that medical practitioners are barred from administering the drugs under the Hippocratic oath as well as showing a true hypocrisy regarding the ‘justice’ of the procedure, means that administering the sentence falls into the hands of prison employees. There have been alleged stories of incorrect dosages being used, and other instances where the convict has suffered greatly during the procedure. Consider for example the botched 34 minute torture ofAngel Nieves Diaz in Florida, 2006.
• The ongoing search for a more humane form of execution in itself proves that deep down inside, we all know that killing another person is wrong. Someone will always have to have blood on their hands regardless of the method or justification, legal or otherwise.

The view of Mike Farrell & LawBlogOne

As you may know from prior posts, I am completely against the death penalty. In my opinion, it is simply not acceptable to lower yourself to committing the same act in the name of justice that another has been prosecuted for. I do not believe that a society that executes its prisoners can claim to hold a higher moral ground in doing so.

I find capital punishment shameful, not only in concept but in application, particularly due to the fact that during the course of an execution, it is not the judge or the jury or the victims themselves that carry out the sentence, but an unnamed group of individuals who during the moment of sentence effectively become state sanctioned murderers.

Capital punishment is not justice; it is pure and simple revenge and retribution. What it is not about is deterrence, rehabilitation and reparation, all elements which don’t come into it, and as has been widely debated and reported over the years, capital punishment is no more a deterrent against murder than life imprisonment would be.

Lastly, the USA to me should be and has been in the past a leading light for freedom and human rights. However on the issue of capital punishment, and others that I will not debate here, they have fallen behind in that respect, and by continuing to uphold an out of date, unjustifiable and wrong system of capital punishment, they are little better than those other states that they themselves criticise for imposing capital sentences and human rights abuses on their citizen’s, including states such as Iran.

I therefore call on the Great Pioneer State of Texas to urgently reconsider and abolish its current policy on capital punishment, and to show the world that Texas and the USA can be a leading light to the modern world on Human Rights issues.

Jue Frangos’ view

I am something of an idealist and detest injustice in all forms. I believe fundamentally in all human rights, particularly the right to life, and I find it abhorrent that any allegedly civilised nation can continue to support the death penalty – sadly, it seems that the United States and specifically in the case in hand, the State of Texas, holds a different view as they march steadfastly towards another inhumane execution, against the rule of law and dressed up as justice. I also believe that we all bear some responsibility for making things change.

In 2010 at the 65th session of the UN General Assembly a Resolution calling for a global moratorium on the death penalty was reaffirmed – theUnited States was one of only 41 Nations to vote against (with 109 votes in favour and 35 abstentions). The UN has, in fact, been calling for a global moratorium since 2007 yet seems powerless to convince an ever decreasing number of Nation States who continue to be in favour of the mindless execution of their own [and other] citizens. A further reaffirmation is expected from the UN in 2012.

The fact that this UN Resolution exists lends itself to my belief that we all bear responsibility for the continuance of the death penalty, not only collective responsibility but also a personal responsibility. I’d never really thought about it as an issue that I could do something about, I’d never felt that sense of personal responsibility until I experienced the execution of Troy Davis through the joys of social media. The experience of going through that execution as it happened, in real time, with hundreds of thousands of other people around the world made it very real and I felt an incredible sense of guilt and loss that I had not been able to do anything to stop it; It also made me realise that its not OK to look the other way and hope that someone else will speak up – it made me see that we all need to speak up and keep doing so until the death penalty is abolished entirely, globally.

As Texas prepares to execute Rodrigo Hernandez this week, it can be sure that I am watching and shouting that not only is it wrong but that it is a clear breach of human rights, it is against the rule of law and against the moral code of societies all around the world. Texas and the rest of the United States is in an ever decreasing minority and it can rest assured that I along with the rest of the genuinely civilised world will continue watching until it agrees to cease its inhumane practices and evolve, morally and socially, to adopt the same standards as we have.

Capital punishment is nothing more than barbaric retribution in its lowest form; State sanctioned murder for which there can be no justification. We are all able to play a part in putting an end to the death penalty in America and around the world. We can all make a difference and I call on Governor Rick Perry to make his difference by stopping the execution of Hernandez and immediately installing a moratorium on the death penalty in Texas.

What you as reader can do

• Write to Governor Rick Perry and express your opinion on capital punishment. The governors office can be be contacted here. May be slight difficulty with accessing this system from countries outside theUS as it is address specific, but worth a try.
• Take to twitter and signal your discontent with the situation
• Likewise do the same with Facebook
• And any other social networking sites you use
• Post links to this post, or re-blog it yourself to spread the word.
• Follow the Hernandez case on ‘Execution Watch’ which will be broadcasting online radio live on the night of the execution reporting from the site on any developments that may occur particularly regarding any last minute appeals.
• Support organisations including Reprieve and Amnesty International who campaign for the abolition of capital punishment, in theUSA and worldwide.
• Write to your MEP to express your opinion and ask them to place the death penalty firmly back on the EU agenda this year.

Links

• http://www.murderpedia.org/male.H/h/hernandez-rodrigo.htm
• http://abcnews.go.com/blogs/politics/2011/09/death-penalty-applause-for-rick-perrys-ultimate-justice-at-republican-debate/
• https://www.oag.state.tx.us/oagnews/release.php?id=3955
• http://www.youtube.com/watch?v=kxzONeK1OwQ
• http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976
• https://docs.google.com/viewer?url=http://texasafterviolence.org/tavp_ftp/ExecutionProcedureTDCJ2008.pdf&embedded=true&chrome=true
• http://executionwatch.org/
• http://www.amnestyusa.org/our-work/issues/death-penalty/us-scheduled-executions
• http://www.reprieve.org.uk/
• http://camerontoddwillingham.com/
• http://www.pbs.org/wgbh/pages/frontline/shows/execution/readings/texas.html
• http://civilliberty.about.com/od/capitalpunishment/p/angel_diaz.htm
• http://www.europarl.europa.eu/meps/en/full-list.html
• http://en.wikipedia.org/wiki/Troy_Davis
• http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/65/206
• http://en.wikipedia.org/wiki/Idealist_temperament

Internet access – a question of human rights?

Photo courtesy of Balleyne on Flickr under a creative commons licence

In May of 2011 the United Nations General Assembly issued a report by the Special Rapporteur on the promotion and protection of human rights including freedom of opinion and expression, focusing largely on whether state imposed restrictions on internet access are capable of infringing such rights. The report concluded that such state action could infringe human rights citing current examples including China infringing freedom of expression by imprisoning bloggers, and black outs of internet and communications during civil unrest in Egypt. The report also recommends that all means be explored as to establishing universal worldwide access to the internet.

However what the report does not do is to interpret ‘Internet access’ as a human right of itself, only that through the internet a range of human rights can be exercised and therefore infringed if access is curtailed by state intervention, as confirmed at paragraph 22 which states -

‘Thus, by acting as a catalyst for individuals to exercise their right to freedom of opinion and expression, the Internet also facilitates the realization of a range of other human rights.’

This appears a clear acknowledgment that internet access is merely a gateway through which human rights can be exercised, but not that internet access is in itself a human right.

This report has subsequently and rightly stimulated wider debate on whether or not internet access itself is or should be a human right (an issue which surely also entails that access to the IT and communications technology must also by necessity be a human right), both by those who see such definition as a positive development, and those who consider it a false assessment.

Two prominent opposing examples that have emerged include that of JD Rucker who argues that internet access in itself is a human right, due largely to its inseparability from those human rights which are engaged when using the internet such as freedom of expression and privacy, and that of Vinton G Cerf who argues in the New York Times that internet access is not a human right but merely a gateway to a place where human rights may be engaged.

Now because many of the philosophical issues generated by these viewpoints have been fully discussed by Adam Wagner at the UK Human Rights Blog (also reproduced in the Guardian), I will not retread them here, suffice to say that based on a consideration of the UN report and the resultant conflicting arguments, my personal opinion is that I agree partly with Cerf; internet access in itself is not a human right… yet. However on whether access to the internet could become a human right I would say based on the fact that it is such a widely used tool through which human rights to freedom of expression and privacy are almost always engaged, I believe it has the capacity to become a human right. Indeed in some states including Finland, rightly or wrongly, access to the internet is already considered a fundamental right.

I personally believe however that we are not there yet, and that before we can progress to that point, various practical, economic, technological, geographical and legal obstacles must first be overcome, some examples of which I will outline here. It is also important to consider the angle from which the argument is coming regarding internet access as human right, there are two apparent possibilities:

1. That such rights are engaged only when the state steps in to limit or remove internet access on the basis that the right stems from the exercise of rights to freedom of expression and privacy through the internet as a gateway, and can by implication only be engaged by persons who have access to the internet or may have access to it; or
2. That the right is always engaged, access to the internet is a human right which ordinarily can not be limited or restricted, and means must be established to ensure that everyone has reasonable access, necessitating that everyone must have access to the requisite computer and telecommunications technology, a positive obligation going way beyond questions of simple state limitation under point 1.

Elements of both viewpoints can be seen in the UN report and throughout resultant debate. For the purposes of this commentary however let us consider that point 1 is achievable and actionable as shown in the Finland example; and move to consider point 2 which falls more in line with the arguments of JD Rucker, arguments which throw up the most interesting obstacles to realisation

Contractual obstacles

Internet access, even in western countries, is not strictly an issue of state provision but contractual. It relies on infrastructure, services and access being provided under contract to end consumers who for example in the UK pay providers such as BT, Virgin Media etc for access. In fact state intervention usually takes the form of limiting access to service under grounds as discussed in the UN report and mentioned above. As a contractual service, internet access can be withdrawn by providers should the consumer breach the contract terms. The primary fact remains therefore that internet access is not ‘as of right’; users either pay for and have access or they don’t pay and have no access, with limited exception regarding facilities such as public libraries where access may be provided free, though this is still not access as of right where users generally must be library members.

Additionally when we talk of internet access as a human right, we must also consider the wider issue that not only internet access but the means of access must by necessity also need to be a human right, requiring that everyone must be provided with a computer, smart phone, iPad or other means of access plus electricity and hard wired or satellite telecommunications to facilitate connection.

I doubt however whether the Apples, Microsofts, IBM’s, Dells, BT’s, Virgins (Virgin media’s that is!), AOL’s et all of the world would be willing to start turning their equipment, services and facilities over to the state or to supply to everyone gratis given that doing so would simply lead to their immediate collapse. Apart from the fact that it would therefore likely be impossible to achieve this given the private nature of internet, telecommunications and IT equipment contractual services, elevating the internet to an inalienable right would have a number of negative effects; providers would disappear, jobs would be lost, care and maintenance of services would suffer and in the long run the relevant industries would require nationalising, bringing them closer to the very state organisations that Human Rights would seek to prevent users from. N any event I doubt whether the requisite services and equipment could be provided on a nationalised basis given the cost that would likely be involved, not just for the UK, but for those states which have little or no infrastructure to achieve such, which brings us to the next group of obstacles.

Geographical, economic, social, political & environmental obstacles - the internet as preserve of western civilisation

The UN report highlights that of the worldwide population of 7 billion, only 2 billion have internet access with that proportion being concentrated largely in a handful of states and blocks (see map below). The internet therefore remains the preserve of Europe, North America and Australia. Some areas have little or no penetration particularly Africa, Asia, and some areas of Central and South America though some of this may be explained by state antipathy to the internet such as in Asia and North Korea. However for some areas, including Africa it is likely that many states simply don’t have the economic and technological infrastructure to allow widespread internet penetration, while in others there are questions of civil warfare and an imbalance of resources and poverty presenting significant geographic, economic, social, technological and political obstacles towards the idea that the internet is a universal human right.

With these issues in mind, it is easy to consider that any claim of internet access as human right could easily be written off as little more than a western indulgence with little significance to many people worldwide without, particularly throughout Africa where many live with severe poverty, famine and war, struggling each day for basic necessities and survival. I doubt that the internet is top of the Human Rights agenda in such places, although I could postulate that rights to life, freedom from torture, inhuman or degrading treatment most likely are.

Map of global internet access penetration

There are also questions regarding the environmental impact of the procurement and transportation of materials, raw and manufactured. We are already being told that collectively we are taxing global resources beyond sustainability. Rolling out universal internet access and the equipment to facilitate such is going to place infinitely more strain on resources, and contribute greatly to man made global warming. In the end we may be endangering humanity more than we are assisting it, and human rights will mean very little when the land we live on can no longer support us. One potential solution to this is of course recycling and reconditioning of existing equipment. However this is still something that at least in the UK and probably the USA many of us still need to get to grips with before the UN can consider rolling out super fast broadband to the 4 corners of the planet.

In conclusion, while I am not adverse at all to the idea that internet access could ‘become’ a universal human right, I do believe that an immense amount of work is required to make this a reality. The internet undoubtedly has much to offer in terms of education and access to information, however less than a third of the worlds population has access, and this despite admirable projects mentioned in the UN report including the ‘One laptop per child’ initiative which while having reached 2.4 million individuals, still leaves 5 billion and the vast majority of the human race literally untouched by the internet. Until we are in a position therefore to make the internet a true worldwide and universal concept as envisaged by the UN report, I do not think it is true to say that the internet access is a human right at present given that it is only available arguably to a privileged minority.

Human rights to freedom of expression, privacy and others are nonetheless engaged when using the Internet for those of us with access and on that basis those with access should not have it limited or restricted by state intervention unless such intervention is in line with some legitimate concern recognised as acceptable within existing human rights law. I believe that this represents an accurate and fair reflection of the UN stance as stated in the report concerned.

Mike Farrell, January 2012

links

• http://www.guardian.co.uk/law/2012/jan/11/is-internet-access-a-human-right
• urlm.in/kuhq (UN Report)
• http://www.itu.int/net/pressoffice/stats/2011/01/index.aspx
• http://www.kwintessential.co.uk/map/internet-penetration.html
• http://www.techi.com/2012/01/internet-access-is-a-human-right/
• http://www.itu.int/net/pressoffice/stats/2011/01/index.aspx
• http://www.onlineschools.org/state-of-the-internet/soti.html
• http://www.nytimes.com/2012/01/05/opinion/internet-access-is-not-a-human-right.html?_r=2
• http://ukhumanrightsblog.com/2012/01/11/is-internet-access-a-human-right/
• http://www.theverge.com/2012/1/5/2684783/the-question-of-human-rights-and-internet-access
• http://news.bbc.co.uk/1/hi/8548190.stm