Thinking globally, acting regionally: Regional Approaches to Digital Human Rights (Part 1)
Yohannes Eneyew Ayalew
“The case for an African concept of human rights is essentially an argument for cultural relativism as a counter to the universalist claims of the modern human rights movement. The premise of this position is that culture shapes the articulation and fulfilment of human rights because of its formative influence on human thought and behaviour. Human rights principles are therefore culturally relative to different contexts, and culture informs unique conceptions of human rights when grounded in African moral principles and cultural experiences.”
Bonny Ibhawoh (2018) 37.
Introduction
The idea of digital human rights has been often framed within the broader context of international human rights law (IHRL). IHRL seeks to provide a universal framework for protecting digital human rights, whose development can be grouped into three generations, such as transposing existing offline rights to the online sphere, creating new digital rights, and imposing rights and obligations on big tech companies. Still, regional human rights systems offer normative and institutional frameworks that are tailored to local realities and contexts across different regions.
Intuitively, regional systems are normative and institutional mechanisms created at the regional level to promote and protect human rights, while being responsive to the cultural and contextual realities of different regions. At the moment, there are three major regional human rights systems in the world: the African, European and Inter-American human rights systems. With the rapid revolution of the Internet and digital technologies, regional systems have, more than ever before, found themselves deeply immersed in questions of digital governance, whether through norm-making, enforcement, or interpretation efforts and have been making inroads towards the development of digital rights.
Yet, the African and Inter-American systems, which play a crucial role in addressing the unique cultural, social, and political dynamics of specific regions, for example, are being largely overlooked in many academic discussions on digital human rights. These systems are often pushed to the margins of mainstream scholarship and barely make it beyond the footnotes of such discussions.
This two-part post seeks to explore the ways in which regional approaches, such as the African, and Inter-American human rights systems inform, complement, and possibly depart from IHRL regarding human rights in the digital environment. In Part 1, I first examine why regional systems are important for fostering digital human rights and then go on to explore key normative developments in the African human rights system, emphasising the need to centre African agency in digital rights discourses.
Why are regional systems needed?
Regional systems are important forums for better promoting and protecting human rights in the digital environment. In general, there are at least three justifications for the need to defend regional systems within human rights law discourses. The first raison d’être is linked to an anthropological justification, in that human rights are culturally relative in their application, notwithstanding their universality. This justification was widely advocated by the American Anthropological Association (AAA) during the drawing up of the Universal Declaration of Human Rights (UDHR). Accordingly, the argument for cultural relativism by AAA hinged up on three propositions:
- The individual realizes [one’s] personality through [one’s] culture, hence respect for individual differences entails a respect for cultural differences.
- Respect for differences between cultures is validated by the scientific fact that no technique of qualitatively evaluating cultures has been discovered.
- Standards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of the beliefs or moral codes of one culture must to that extent detract from the applicability of any Declaration of Human Rights to mankind as a whole.
This means that individuals shape their identities through their cultures. Of course, no culture can be objectively ranked above another, and universal human rights must account for the diversity of cultural values to avoid imposing one culture’s standards on all of humanity. Since 1947, the AAA has advocated for the argument of cultural relativism and reaffirmed its position in its 1999 Statement on Human Rights and its 2020 Statement on Anthropology and Human Rights. Grounded in both cultural relativism and at times universalism, regional systems emerged to provide much-needed, culturally sensitive protection of human rights within their respective regions (see here, here and here).
This brings us to the second related justification for why regional systems are important: They facilitate the enforcement of human rights in a more context-driven way. While international law and the international system offer a universal framework, regional systems provide an additional layer of enforcement mechanisms that are better attuned to local conditions than the international system (see here and here). This suggests that international law was inevitably required to adapt to the specific situations in which it was applied. Given the impossibility of achieving uniformity, universal rules should coexist alongside regional ones. The oft-cited adage “Think globally, act locally” applies here in the sense that regional mechanisms serve as localised agents of the global human rights project. The preambles of the founding documents of the African, European, and Inter-American systems for the protection of human rights clearly establish their mission to translate the Universal Declaration of Human Rights into reality within Africa, Europe, and Latin America, respectively. Therefore, regional systems allow for the possibility of regional values to be taken seriously when human rights norms are defined. For example, the African system has embraced the concept of ‘peoples’ rights to reflect African values within the African Charter on Human and Peoples’ Rights.
The third justification questions the very legitimacy of international law as a Eurocentric project, which primarily serves to promote Western politico-economic interests. Mathias Forteau (at ¶5) postulates that “classical rules of international law were not necessarily considered satisfactory by Latin American and Afro-Asian lawyers, as they primarily conveyed Western interests” (emphasis added). This is what Judge Ammoun has put in his separate opinion in the Barcelona Traction Case in 1970 citing the Latin American and Afro-Asian regional practices of international law particularly on state responsibility and diplomatic protection. At p.291, he puts that: “It seems indeed that among the principles and norms which have sprung from the regional law peculiar to Latin America are the norms and principles whose aim is to protect countries in that part of the world against the more powerful industrialized States of North America and Europe.” Seen in this light, therefore, regional international law, including regional systems, is essentially a militant concept, invoked with the idea of escaping the ‘old’ international law and critiques the colonial origins of international law through a critical and Third World lens (see here, here and here).
Key developments of digital human rights in Africa
The African human rights system is regarded as a ‘norm leader’ in the regional protection of human rights, despite its repeated neglect in mainstream human rights discourse. In this regard, Okafor and Dzah have analysed how the African system has contributed several norms to the body of human rights, particularly in the context of the right to self-determination, the right to development and the right to a healthy environment. Their argument makes more sense and becomes even more pronounced in the development of digital rights norms, as I demonstrate below.
Firstly, the African Union (AU) has adopted copious normative and policy documents that could potentially shape the progressive development of digital human rights in Africa and beyond. A case in point is the African Digital Compact (ADC) adopted in July 2024, just a couple of months before the UN Digital Compact, which aims to harness the transformative potential of digital technologies to foster sustainable development, economic growth, and societal well-being throughout Africa. The ADC draws (and incorporates) several digital policies and strategies on the continent, such as the African Union’s Agenda 2063, the Digital Transformation Strategy for Africa (2020–2030), and related policies and strategies, including the AU Interoperability Framework for Digital ID 2022, the AU Data Policy Framework 2022, the AfCFTA Digital Trade Protocol 2024, the Child Online Safety and Empowerment Policy 2024, AU Continental Artificial Intelligence Strategy 2024, the Malabo Convention on Cyber Security and Personal Data Protection 2014 and the Common African Statement on the Application of International Law in the Cyberspace 2024. Building on these policy documents, the Compact seeks to promote digital inclusivity, protect digital rights, ensure a safe and secure digital environment for all Africans and position Africa as a proactive contributor to the global digital economy.
For this post, I focus on Pillars 1 (‘Affordable Access to Digital Technologies’) and 9 (‘Digital Rights and Privacy’) of the Compact. Pillar 1 outlines the right to affordable access to digital technologies: While there is a wide digital divide in Africa, the Compact requires states to ensure that access to digital technologies and the internet is affordable, reliable, inclusive, open, secure, and safe across the continent. It places special emphasis on reaching rural and underserved communities, and ultimately aims to bridge the digital divide. The commitments under Pillar 1 are specifically intended to address this divide in Africa. Likewise, Pillar 9 of the Compact champions the first generation of digital human rights by applying human rights principles to the online world. In other words, the same human rights that people enjoy offline must also be upheld online (see here, here and here). Furthermore, it specifically aims to protect digital rights in general, and privacy in particular, thereby fostering a rights-respecting digital environment. To this end, the Compact calls on states to develop and enact comprehensive digital rights and data protection legislation that adheres to the highest standards of privacy and data protection.
Another instance where the African Union helped shape the digital human rights discourse by way of elaborating normative documents is through the designation of new digital rights under framework treaties. For example, the right to be forgotten has been recognised in Africa through the 2014 Malabo Convention on Cybersecurity and Personal Data Protection, making Africa the first region to do so after Europe—a development that could be seen as a cause for celebration of human rights in Africa. Accordingly, Article 19 of the Malabo Convention stipulates:
[A]ny natural person may demand that the data controller rectify, complete, update, block or erase, as the case may be, the personal data concerning him/her where such data are inaccurate, equivocal or out of date, whose collection, use, disclosure or storage are prohibited.”
Accordingly, the term ‘erase’ within Article 19 indicates the right of data subjects (individuals) to delete personal data or information that is prohibited from being collected, used, or stored. Similarly, the word ‘block’ grants data subjects the right to prevent personal data from being processed, used, or stored. Nevertheless, one criticism directed at the Malabo Convention is that it relied too heavily on the 1995 EC Data Protection Directive (DPD) 95/46 during its drafting process. That is why the word ‘block’ was included in the Malabo Convention, as well as in Article 12(b) of the DPD, forming the basic components of what is referred to in Article 17 of the General Data Protection Regulation (GDPR) as the right to be forgotten.
At the threshold, the AU has actively developed new digital rights, such as the right not to be subjected to automated decision-making (the right to a human decision), which is expressed under Article 14(5) of the Malabo Convention. Meanwhile, the international human rights system (and mainly the UN system) has yet to develop new digital rights regarding artificial intelligence (see here, here and here).
Secondly, the normative development of digital rights in Africa is also driven by the efforts of human rights institutions in the region. For example, the African Commission on Human and Peoples’ Rights (‘African Commission’), one of the organs of the AU, has developed several soft law standards aimed at advancing digital rights in the region and beyond. Among these, the most notable instances where the African Commission has demonstrated normative leadership include the Guidelines on Access to Information and Elections in Africa (2017), the Declaration of Principles on Freedom of Expression and Access to Information in Africa (2019), the Resolution on the Need to Undertake a Study on Human and Peoples’ Rights and Artificial Intelligence (AI), Robotics, and Other New and Emerging Technologies in Africa (2021), the Resolution on Internet Shutdowns and Elections in Africa (2024), and the Resolution on Promoting and Harnessing Data Access as a Tool for Advancing Human Rights and Sustainable Development in the Digital Age (2024). While these soft laws are generally regarded as non-binding instruments, they play a significant role in providing states with readily available model laws to emulate. These regional standards and soft laws, in turn, help shape state behaviour in Africa and provide a source of opinio juris under customary international law. Given that the African Commission has a broad remit to promote, protect, and interpret human rights as provided under Article 45 of the African Charter, one could reasonably expect the Commission not only to develop soft laws but also to take proactive and concrete steps to robustly protect and advance digital human rights across the continent.
Finally, Africa’s international courts, through their jurisprudence, have contributed for the normative development of digital human rights. In Ajavon v Benin (2020), for example, the African Court on Human and Peoples’ Rights assessed the limits of freedom of expression on the Internet and elaborated on how the right to freedom of expression online should be balanced against the rights and safety of others to be free from discrimination, hatred, and violence, using the touchstones of legality, legitimacy, necessity, and proportionality (¶ 119). In that case, the African Court held that the laws that restricted online expression were permissible because the aim of preventing racial and xenophobic insults was legitimate and proportional. It then dismissed the applicant’s claim that certain sections of the Digital Code of Benin violated the right to freedom of expression (¶¶ 113-14).
In addition to that, Nyinevi and I have previously examined the role of sub-regional courts in protecting Internet access and human rights in the digital environment in Africa ( see also here). In SERAP and Others v. Nigeria (2022) (also known as the ‘Twitter Ban Case’), the applicants challenged the government’s ban on access to Twitter, imposed on 4 June 2021, arguing that the platform was accused of undermining Nigeria’s corporate existence. They further contended that the ban or suspension of Twitter—without any basis in law or a court order—violated freedom of expression, the right to information, and freedom of the media, contrary to the African Charter and other human rights treaties binding on Nigeria (¶¶ 30, 37). The ECOWAS Court held that “access to Twitter is one such derivative right that is complementary to the exercise of freedom of expression and its related rights to impart and receive information.” As such, restricting access to Twitter amounts to a violation of freedom of expression (¶ 68).
Having navigated some of the key developments in digital rights in Africa, in my next post, I will turn to consider the Inter-American discourses on digital rights and propose regional approaches to digital human rights as a complement (and perhaps as an alternative) to IHLR’s universalistic vision of digital rights.
This post forms part of a two-part series, Part 2 is accessible here.
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About the author:
Dr Yohannes Eneyew Ayalew is a Postdoctoral Fellow at ‘Three Generations of Digital Human Rights’ Project directed by Professor Yuval Shany under ERC Grant No. 101054745: the Three Generations of Digital Human Rights (DigitalHRGeneration3) at the Faculty of Law, The Hebrew University of Jerusalem and is currently working on Regional Approaches to Digital Human Rights. Prior to that, he was a Sessional Lecturer and Tutor at the Faculty of Law, Monash University, Australia. He holds a PhD in Law at the Faculty of Law, Monash University, Australia. His research interest spans in the areas of Digital Human Rights, Balancing Digital Human Rights, African Human Rights Law, International Human Rights Law and Third World Approaches to International Law (TWAIL).
