A blog on why norms matter online

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I'm a Post-Doc Fellow at the Cluster of Excellence "Normative Orders" of the University of Frankfurt and lecturer at the Institute of International Law of the University of Graz, Austria. I've studied international law in Graz, Geneva and at Harvard Law School. I enjoy thinking and writing about Internet Governance and discussing and shaping the future of the Internet

Friday, June 28, 2013

Klagen gegen Überwachungsprogramme: Kaum eine Chance vor internationalen Gerichten

Als ob PRISM nicht schon schlimm genug wäre. Nun soll auch der britische Geheimdienst GCHQ deutsche Internetkommunikationen über ein Glasfaserkabel angezapft haben. Die Bundesregierung kann die Spionagestaaten deshalb zwar vor internationalen Gerichten verklagen; doch einfach wird das nicht, meint Matthias C. Kettemann.

Zu diesem Thema habe ich auf der Legal Times Online einen Artikel veröffentlicht. Zu lesen hier. 


Wednesday, June 26, 2013

Just published: European Yearbook on Human Rights 2013

ISBN: 978-3-7083-0925-5
Wolfgang Benedek/Florence Benoît-Rohmer/Wolfram Karl/Matthias C. 
Kettemann/Manfred Nowak (eds.)

European Yearbook
on Human Rights 2013

In terms of human rights 2012 was the year of coherence: The EU adopted the first Strategic Framework and Action Plan on Human Rights and Democracy and appointed its first Special Representative for Human Rights. At the Council of Europe, the importance of coherence in executing judgments and in improving the efficiency of justice remains high. And the story of OSCE's human dimension proves to be one of ensuring policy coherence.

Defining and discussing key developments in human rights, the fifth edition of the European Yearbook on Human Rights brings together 26 contributions by renowned human rights experts that provide a much needed overview and sought-after analysis.

Edited jointly by representatives of four major European human rights research, teaching and training institutions, the Yearbook 2013 covers extensively all relevant developments in the field of the three main organizations charged with securing human rights in Europe: EU, Council of Europe and OSCE. A further chapter contains contributions on the role of civil society in human rights protection and on cross-cutting topics.

Pursuing a holistic approach and containing detailed analyses, the European Yearbook on Human Rights 2013 provides readers with both a comprehensive overview and deep understanding of the events and issues that have shaped the human rights debate in Europe in 2012 and will shape it in the future.

The impressive array of authors – academics and diplomats, practitioners and human rights experts – makes the book essential reading for anyone interested in human rights in Europe and beyond.


Contributions

I Topics of the Year

Karen ABUZAYD, Carla DEL PONTE, Vitit MUNTARBHORN and Paulo Sérgio PINHEIRO: The Imperative of a Political Settlement in Syria: Perspectives of the UN Independent Commission of Inquiry

Engelbert THEUERMANN: The Review of the EU Human Rights Policy: A Commitment to Strengthened EU Action on Human Rights

Ulrike LUNACEK: Sticks and Carrots from Brussels to Pristina: An Inside Perspective on the Difficult but Rewarding Project of Kosovo’s EU Rapprochement

II European Union

Wolfgang BENEDEK: EU Action on Human and Fundamental Rights in 2012

Jeff KENNER: The Court of Justice of the European Union and Human Rights in 2012

Allan ROSAS: The Applicability of the EU Charter of Fundamental Rights at National Level

Christian BEHRMANN and Davide ZARU: The External Promotion of Economic, Social and Cultural Rights by the EU: Some Lessons for the Future

Peter VALANT: The EU Special Representative for Human Rights: Manager or Mastermind?

Theodor RATHGEBER: The EU at the UN Human Rights Council in 2012: Out of Touch with Human Rights Dynamics

José Luis BAZÁN: Freedom of Religion in the European Union

Aikaterini-Kaousar AMPOU-SALIM: The EU’s Involvement in the Democratization Process in Egypt and in Libya Before and During the Arab Spring

Sarah DERDELINCKX: Towards a More Effective Promotion of Human Rights and Democracy in Central Asia: the Need for a Paradigm Change in EU Policy

Silvia GÓMEZ MORADILLO: Ending the Detention of Irregular Migrants Prior to Removal in the EU’s Mediterranean Member States: A Proposal to Reform the Return Directive with a View to Alternatives to Detention

Marnix DE WITTE: The Case for a Solidarity- and Human Rights-Based Revision of the Dublin System

Paolo PAGOTTO: EU Trade Policy and Labour Standards: The Case of the Free Trade Agreement with Colombia and Peru

III Council of Europe

Brigitte OHMS, Tatjana CARDONA, Elisabeth HANDL-PETZ, Leonore LANGE: The Human Rights Jurisprudence of the European Court of Human Rights in 2012

Jean Paul JACQUÉ: A propos de Nada contre Suisse: Les résolutions du Conseil de Sécurité devant la Cour européenne des droits de l’Homme

Dominika BYCHAWSKA-SINIARSKA: Why (and How) the Committee of Ministers Needs to Be Reformed in Order to Enhance Implementation of ECtHR Judgments

Georg STAWA: The Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe: Aims, Tools and Instruments to Measure and Provide Competence, Independence, Impartiality, Transparency and Efficiency to Judicial Systems

IV OSCE

Douglas WAKE: Is There Life after Astana? Recent Developments in the OSCE’s “Human Dimension” in Historical Perspective

Aleksandar LAZOVSKI and Aleksandar DIMISHKOVSKI: ODIHR’s Activities Against Discriminatory Practices in the Former Yugoslav Republic of Macedonia: A Case-Study of Roma Integration

Snježana BOKULIC and Omer FISHER: ODIHR’s Human Rights Monitoring: Observing Public Events and Supporting Freedom of Peaceful Assembly

V Cross-cutting Issues

Manfred NOWAK: The European Master in Human Rights and Democratisation in Venice

Antonio PAPISCA: What Education for a Smart, Sustainable and Inclusive Growth in the EU? The Relevance of Human Rights Education

Lauri MÄLKSOO: The Human Rights Concept of the Russian Orthodox Church and its Patriarch Kirill I: A Critical Appraisal

Saturday, June 22, 2013

Call for Papers: Practices of Critique, 5-7 December 2013, Frankfurt

I'm happy to share a call for papers for the 


Fourth International Young Researcher's Conference

Practices of Critique
5-7 December 2013
Goethe-University Frankfurt am Main, Campus Westend



Two of the panels are of particular interest to those who engage with Internet and human rights issues: 

  • Von Shitstorms und Empörungswellen – Gründe und Abgründe der Internetkritik click here...
  • Praktiken der Kritik nach dem Arabischen Frühling click here...
Below you can find the complete call.


Call for Papers (pdf): click here...

Deadline: 15 July 2013

Practices of critique are intertwined with normative orders in manifold ways. They contain and refer reflexively to critical contentions, and they can enable as well as suppress critique. On the one hand, critique can draw on the justificatory basis of normative orders. On the other, such an immanent critique always harbours the danger of contributing to the reproduction of the conditions it questions. Further, critical practices of social movements and theoretical interventions are often confronted with the argument that there is no uncontaminated position from which to formulate critique. Accordingly, the question arises as to what forms critique will assume and under what historical, political and social conditions critique will appear at all.
In this context it is essential to reconstruct the theoretical foundations of critique and power structures as well the practicesin which they are instantiated. Three aspects are crucial: firstly concrete forms of power and their application, which always emerge from a tension between normative claims and solidified systems of rule; secondly the purview of justice as the foundation for critical rationale; thirdly the aspect of representation. After all, justifications are carried via narratives as well as symbols such that they necessarily contain excess aesthetic content. Therefore the aesthetic facets of power, justice or legitimation also require attention. These terms of reference result in the following array of questions for the conference:
1) Conditions of possibility for critique
Under what circumstances do practices of critique emerge? To what extent are unjust conditions relevant? How do specific normative orders, power structures and representations of them by themselves and others affect the emergence of critique? How can we apprehend the (im-)possibility of the critique of normative orders? Are there spaces of critique that lie beyond the reach of the criticized, or is critique perpetually condemned to aporetic relations?
2) Realization of critique
In what forms does critique become manifest? What social practices are connected with critique, and how do they relate to each other, not least with regard to their respective interpretations of social reality? How can we grasp practices of critique – conceptually as well as empirically? What role do representations of critique and the criticized play in terms of its realization? Do particular forms of articulation further legitimize relations of dominance? Who is able to and who is entitled to express critique?
3) Reactions to critique
What reactions to various practices of critique, such as social movements and theoretical interventions, can we observe? Do they lead to a stabilization of power structures through conservative retrenchment or to reflexive social change towards more just relations? How does the academic reconstruction of social struggles influence the reaction towards critique? How does the representation or the mode in which orders are justified and critiqued affect the reproduction of injustice, oppression and violence?
Such questions shall be addressed from multidisciplinary perspectives at the international graduate conference “Practices of Critique” of the Frankfurt Cluster of Excellence “The Formation of Normative Orders” on the 5-7 December 2013. We invite abstracts from novice researchers (max. four years subsequent to receiving a PhD) until 15 July 2013. There are 23 panels (about half of them are in English) to which you may directly apply. You may also submit your abstract under the general conference theme should selecting a specific panel prove unfeasible. For further information concerning content and language of the panels please refer to the links below or visit the following website:
www.normativeorders.net/young-researchers-conference
Please email proposed contributions to graduateconference@normativeorders.net, including ananonymized abstract and a short bio in two separate documents (doc or rtf). The subject heading of the email should include the panel of choice. The length of abstracts should be 400 - 700 words.
Child care services are available with advance registration. For further question on this and other issues, feel free to contact the organizers at the above email address. We are looking forward to your submissions!

Panels

(Non-)Compliance and Critique click here...
Coping with critique: The reaction of international organizations to normative contestation click here...
Crisis and critique in banking and finance click here...
Critical Theory and Global Justice click here...
Critique from beyond the Edge of the (Legal) Universe click here...
Democracy in theory and practice - or both? click here...
Die Kritik auf der Leinwand - Darstellungsformen von Rechtfertigung click here...
Die Schönheit der Chance: Das Internet als Ort utopischer Praktiken click here...
Dogmatik – Apologie oder Kritik von Normativität click here...
Freiheit und Kritik click here...
Indeterminacy in law and Critical Legal Theory click here...
Knowledge and Action click here...
Kritik der politischen Kunst click here...
Kritische Rechtsbetrachtungen: Wohin zielt ihre Kritik und worauf zielt die Kritik an ihnen? click here...
Normativität der Sozialkritik click here...
Other Voices, Other Critique? Critical Knowledges Otherwise click here...
Politics of Insecurity, Critique of Security click here...
Politische Gewalt und Aufstände als fundamentale Systemkritik: Transnationale Reaktionen im langen 19. Jahrhundert click here...
Von Shitstorms und Empörungswellen – Gründe und Abgründe der Internetkritik click here...
Praktiken der Kritik nach dem Arabischen Frühling click here...
Religion and Critique click here...
Revolution and Reflection: 1789 and beyond click here...
Transnationaler Konstitutionalismus zwischen Herrschaft und Kritik click here...
Presented by:
Cluster of Excellence "The Formation of Normative Orders" in cooperation with  "100 Jahre Goethe-Universität" and the involvment of "Hochschule für Gestaltung Offenbach"

Wednesday, June 19, 2013

Surveillance under Scrutiny: Finally, the world is talking about human rights online

As more revelations regarding PRISM and Verizon's metadata emerge, one key question arises: Can something bad be actually good? Can the revelations on surveillance practices that have galvanized global civil society lead to a broad discussion on what privacy means, what the limits to surveillance should be, and how human rights (and the proportionality requirement) limit state action? 

Or, as the Economist puts it (in an excellent summary here), "Will scrutiny spur change"?

It is ironic, but in Obama's second term, change is indeed necessary. Change in the way that Internet surveillance is conducted - in secret and without broad public scrutiny. Of course, fighting terrorism is a key responsibility of governments, but in that fight, human rights need to be respected - online and offline. 

What we have learned about PRISM and Verizon suggests that human rights considerations did not play to important a role in the formulation and implementation of surveillance policies. 

A lot of good can come from this assessment. While two thirds of US citizens, in a poll reported by the Economist, agreed that surveillance of their telephone metadata did not bother them, and still half felt the same regarding traffic data on their email communications, a number of global civil society organizations with a keen interest in Internet policy energetically formulated new demands and provided options for the way forward.

Best Bits, a coalition of global civil society groups and individuals active in Internet policy, has published a letter to the US Congress on Internet and telecommunications surveillance. CDT, which signed the letter, argued that it "highlights how the NSA’s surveillance activities not only threaten Americans’ constitutional rights but also the human rights of everyone."

Indeed, as the letter points out: 

"The introduction of surveillance mechanisms at the heart of global digital communications severely threatens human rights in the digital age."

While it is not easy to pinpoint violations of US laws and particular human rights breached by PRISM, the letter correctly identifies the troubling contradiction between US commitments to Internet freedom and the surveillance practices. 

"The contradiction between the persistent affirmation of human rights online by the US government and the recent allegations of what appears to be mass surveillance of US and non-US citizens by that same government is very disturbing and carries negative repercussions on the global stage. A blatant and systematic disregard for the human rights articulated in Articles 17 and 19 of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is signatory, as well as Articles 12 and 19 of the Universal Declaration of Human Rights is suggested."

The law is very complex and international law may not offer definitive answers but the surveillance activities, at the very least, question whether consumer trust in US companies is well placed.

The Coalition calls upon the Obama administration and US Congress

  • "to take immediate action to dismantle existing, and prevent the creation of future, global Internet and telecommunications based surveillance systems."
  • "to allow involved or affected companies to publish statistics of past and future Foreign Intelligence Surveillance Act (FISA) requests they have received or may receive."
  • "to establish protections for government whistleblowers in order to better ensure that the public is adequately informed about abuses of power that violate the fundamental human rights of the citizens of all countries, US and other."
  • "[to create] an independent panel with subpoena power and all necessary security clearances to examine current practices and to make recommendations to ensure appropriate protections for the rights to privacy, free expression, and association. The results of this panel should be broadly published."

The letter to Congress is the second sent by Best Bits. The first went to the Human Right Council 
urging the UN body to 

"act swiftly to prevent the creation of a global Internet based surveillance system by:
  1. convening a special session to examine this case
  2. supporting a multistakeholder process to implement the recommendation of Mr La Rue that the Human Rights Committee develop a new General Comment 16 on the right to privacy in light of technological advancements, and,
  3. requesting the High Commissioner to prepare a report that:
    • formally asks states to report on practices and laws in place on surveillance and what corrective steps will they will take to meet human rights standards, and
    • examines the implications of this case in in the light of the Human Rights Council endorsed United Nations Guiding Principles on Business and Human Rights, the “Protect, Respect and Remedy” Framework of A/HRC/RES/17/4.

Both policy approaches, a US-centred one and a global approach, are important and well placed. They are based on the same commitment ot human rights online as the 11 June 2013 Declaration of the Committee of Ministers on Risks to Fundamental Rights stemming from Digital Tracking and other Surveillance Technologies. 

The Council of Europe recalls that Council of Europe member states have undertaken 

"to secure to everyone within their jurisdiction the right to respect of private and family life, home and correspondence. Restrictions to this right can only be justified when it is necessary in a democratic society, in accordance with the law and for one of the limited purposes set out in Article 8, paragraph 2, of the Convention. ... [Member] States have negative obligations, that is, to refrain from interference with fundamental rights, and positive obligations, that is, to actively protect these rights. This includes the protection of individuals from action by non-state actors."

The NSA was no non-state actor, of course, but the companies holding data for European customers are. Again, legal questions are tricky, especially regarding the extraterritorial application of European data protection and privacy rights.

The Council of Europe finally identified the key challenge of weighing between

"the risks of digital tracking and other surveillance technologies for human rights, democracy and the rule of law and [...] the need to guarantee their legitimate use which benefits individuals, the economy, society at large, and the needs of law enforcement"

The revelations of  NSA's surveillance serve to put the role of human rights online squarely in the focus of the international community.  Thus it's truly an exciting time as I head towards Lisbon for the EuroDIG where I will join as speaker  a workshop on human rights on the Internet organized by IRP Coalition on Thursday and organize a flash panel on Internet surveillance on Friday. Stop by if you have time or attend remotely.

NSA is committed to the value of "protect[ing] national security interests by adhering to the highest standards of behavior". This is commenable. And true, since only by adhering to human rights (as the yardstick against which state behavior can be measured) can the NSA (or any other agency or state actor) ensure security, ideally human security. 




Tuesday, June 11, 2013

Human Rights on the Internet: EuroDIG workshops and sesssions will look at rights, responsibilities - and surveillance

Internet surveillance will be among the key
topics discussed at EuroDIG.Visitors in St.
Gallen's Art Musuem (c) Kettemann 2013
  
I'm at EuroDIG (European Dialogue on Intenret Governance) in Lisbon next week. The conference promises to be very exciting in light of recent developments regarding human rights and Internet Governance. 

I'm a speaker in Workshop 4 entitled "Towards a Human Internet? Rules, Rights, and Responsibilities for Our Online Future". The workshop, coordinated by Marianne Franklin of the IRP Coalition has an innovative breakout format with sessions of freedom of epxression, Internet access, privacy, security and realizing human rights online. If you're in Lisbon, join us. And if you're not, join us remotely.
In light of recent events I also organize a Flash Session on Friday, 21 June, 8:00 (pending confirmation) on human rights and Intenret surveillance. Details to follow but the planned outline is posted below. Stay tuned to this blog for further developments. 


Human Rights and Internet Surveillance: Standards, Principles and Lines of Action
Focal Point: Matthias C. Kettemann

Surveillance has never been easier: a sharp increase in stored data, better surveillance and data mining tools, and security-oriented political priorities together threaten privacy, freedom of expression and democratic participation worldwide.

In Resolution 20/8 (2012), the Human Rights Council affirmed that “the same rights that people have offline must also be protected online, in particular freedom of expression”.  As UN Special Rapporteur La Rue wrote in his 2013 report, Internet surveillance may not only violate privacy but has serious chilling effects on a range of other human rights. 

The Flash will look at key questions brought forth both by La Rue’s report, reflecting worldwide trends, and by the PRISM revelations.

  • What are the limits to Internet surveillance?
  • What is worse: If the surveillance systems in place are illegal or if they are, in fact, legal under national legislation? What about international standards, as developed in the jurisprudence of e.g. the European Court of Human Rights?
  • What role and responsibilities do the different actors – states, companies – in Internet surveillance have? What can civil society do? What about extisting standards, such as the IRP Charter on Internet Rights and Principles?
  • What lines of action exist: Should the Human Rights Council convene a special session? What role can the High Commissioner for Human Rights play? Which organizations should be activated?