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We are not salesman who know nothing about the real inner workings of a Defender, nor do we sell any other type of vehicle, no Porsches, no BMWs, just Defenders. You can call us and get the real story, as we would want it told to us, or you can go with the exotic car dealers with high overheads who tell you what you want to hear so that they can finance their next Ferrari purchase. They all have flaws because they are all now older vehicles. Some flaws are major, some are minor, but if you are buying a Defender we feel you should know the good and the bad before you plunk down your hard earned money. If you would like an ECR vehicle, please call us, otherwise you are just buying a used Rover from a used car dealer. We strongly suggest that you have any Rover that you are thinking about buying fully checked out before you buy it, no matter who you are buying it from. The right Rover can be a blast. 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Cambridge University PressIf this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account.If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account.Although the International Group of Experts agreed that both treaty and customary international human rights law apply to cyber-related activities, they cautioned that it is often unclear as to whether certain human rights reflected in treaty law have crystallised as rules of customary law. Moreover, aspects of international human rights treaty law are subject to variance when States and regional bodies interpret them vis-a-vis cyber activities. The Experts further noted that States may, under specific circumstances ( Rule 37 ), limit the exercise and enjoyment of certain rights in accordance with international human rights law. 2. The Universal Declaration of Human Rights is often cited as reflective of certain key customary norms. Footnote 390 Many provisions of international human rights treaty law, including certain of those found in the ICCPR and the ICESCR, are also regarded as reflective of customary international law. However, no definitive catalogue of customary international human rights law exists. Additionally, not all States are Parties to the same international human rights law treaties and the rights accorded to individuals under regional human rights instruments, and the scope of those rights, vary. Even within regional systems, there is often a margin of appreciation that reflects respect for differences in, inter alia, capacity and national legal tradition. Finally, some treaties allow States to issue reservations to their provisions when they become Parties thereto or subsequently derogate ( Rule 38 ) from their obligations under the treaty in exceptional circumstances provided for in the instrument. 3. This Chapter relies heavily upon various human rights treaties, as well as case law interpreting and applying them. Such instruments are directly binding only on Parties thereto and it is inappropriate to freely generalise from one treaty regime to another. Nevertheless, the Experts agree that treaty provisions shed light, in a general sense, on the scope of applicability and content of corresponding customary international human rights norms. In particular, whenever multiple treaties and case law adopt the same or a similar position regarding a particular human right, the International Group of Experts agreed that such congruence may support, but does not necessarily do so definitively, a conclusion that customary international law exists to that effect. Footnote 391 This point is especially relevant in the cyber context given differing levels of cyber development, economic wherewithal, national and regional security concerns, and the like. However, the Experts concurred that such factors do not relieve States of their customary human rights law obligations, except in accordance with the limitations set forth in Rule 37 or a treaty provision permitting derogation ( Rule 38 ). Rather, these factors are to be considered when assessing how the right in question applies to a situation, as well as the nature of the limitations, if any, that a State may impose on its exercise or enjoyment. 5. The International Group of Experts was in accord that States must not only respect human rights, but also protect (i.e., ensure respect for) them. The obligation to respect denotes a duty to refrain from unlawfully interfering with human rights that individuals enjoy. In other words, it applies with regard to the activities of a State vis-a-vis each individual enjoying the human right in question. By contrast, the obligation to protect refers to the legal requirement to take measures to ensure third parties do not interfere with the enjoyment of human rights. The parameters of these two obligations, and limitations thereon, are dealt with in Rule 36. 6. The precise interplay between the law of armed conflict ( Part IV ) and international human rights law remains unsettled and is determined with respect to the specific legal rules in question. Nevertheless, the International Group of Experts was unanimous in the view that both the law of armed conflict and international human rights law apply to cyber-related activities in the context of an armed conflict, subject to the application of the principle of lex specialis. Footnote 392 For instance, although human rights treaty provisions prohibiting arbitrary deprivation of life are non-derogable, Footnote 393 whether a cyber attack ( Rule 92 ) during an armed conflict violates that prohibition is determined primarily by reference to the lex specialis law of armed conflict rules regarding the conduct of hostilities ( Chapter 17 ). 7. Rule 34 affirms the general premise that individuals enjoy customary international human rights law protections with respect to their cyber-related activities. The following Rule examines some of the key international human rights that individuals enjoy with respect to such cyber-related activities. It must be cautioned that although a State’s activity may interfere with a specific international human right, such as the right to privacy, this fact does not answer the question of whether that right has been violated. Violation is a separate issue. In this regard, human rights law obligations, with the exception of absolute rights, are subject to limitation by the State in certain circumstances. Furthermore, most human rights treaties allow for States to derogate from some of their obligations, albeit only to the extent delineated by those instruments and in accordance with international law. This means that a State has only violated international human rights law if (1) it owes international human rights law obligations to the person in question ( Rule 34 ); (2) the person’s cyber-related activity falls within the scope of a particular international human right ( Rule 35 ); (3) the State engages in an act that interferes with the international human right in question; and (4) the State has not imposed lawful limitations ( Rule 37 ) on, or derogated from ( Rule 38 ), the right in question. As noted in the chapeau to this chapter, the principle that the same rights people have offline are to be protected online has been asserted repeatedly in numerous multilateral and multi-stakeholder fora. Footnote 394 However, the International Group of Experts acknowledged that State understandings concerning the precise scope of certain human rights entitlements in the cyber context, as well as those of human rights tribunals and other relevant human rights bodies, vary. 2. States bear responsibility for international human rights law violations that they themselves commit ( lit. (a) of Rule 36). Footnote 395 Additionally, if the activities of a non-State actor or another State interfere with the ability of individuals to engage in cyber activities protected by international human rights law, States may shoulder an obligation to ensure that the individuals entitled to benefit from the rights in question can do so ( lit. (b) of Rule 36 ). 3. The Experts noted that the issue of whether entities other than States are bound by international human rights law and, if so, the extent to which they are so bound, is unsettled and controversial. However, they agreed that international organisations, as legal persons, may be bound by customary international human rights law. Footnote 396 4. The International Group of Experts was of the view that although certain human rights regimes, such as that of the Council of Europe, Footnote 397 afford various human rights to legal persons, customary international human rights attach only to natural persons. Footnote 398 For instance, if a hostile cyber operation is directed against the website of a human rights organisation, the customary law human rights potentially implicated are those of the organisation’s members, not the organisation itself. Footnote 399 5. With regard to the applicability of customary international human rights law, the International Group of Experts concurred that such law applies to all persons on a State’s territory irrespective of where the State’s cyber activities that implicate the human right in question occur. Footnote 401 Power or control may be over territory (spatial model) Footnote 402 or over individuals (personal model). A State may be, for example, in effective control of foreign territory (that is, the territory is under the authority of the hostile army) during a belligerent occupation (chapeau to Chapter 19 ), whether that occupation be lawful or unlawful, Footnote 403 or if it leases territory from another State and is granted the right of exclusive control over that territory. With regard to application of the personal model, the Experts agreed that individuals abroad who are physically in the power or effective control of the State, as with those detained by the State, are entitled to have their human rights respected by the State concerned. Footnote 404 However, in this latter situation, it may be that only those specific rights relevant to the situation will be engaged. Footnote 405 7. The International Group of Experts acknowledged a viewpoint by which customary international human rights law does not apply at all beyond a State’s borders, irrespective of whether the State is exercising power or effective control, but disagreed with that position. For these States, the standard is limited to specific treaty law. As an example, it applies under the ECHR, but not all States are Parties to the instrument. In particular, no consensus could be reached as to whether State activities conducted through cyberspace can give rise, as a matter of law, to power or effective control over an individual located abroad, thereby triggering the extraterritorial applicability of that State’s international human rights law obligations. 9. On this issue, the Experts were split. The majority was of the view that, in the current state of the law, physical control over territory or the individual is required before human rights law obligations are triggered. Footnote 406 These Experts asserted that the premise of exercising power or effective control by virtual means such that human rights obligations attach runs contrary to both extensive State practice and the paucity of expressions of opinio juris thereon. As an example, there is little evidence that when States conduct signals intelligence programmes directed at foreigners on foreign territory, they consider that their activities implicate the international human right to privacy ( Rule 35 ). 10. A few of the Experts took the position that so long as the exercise or enjoyment of a human right in question by the individual concerned is within the power or effective control of a State, that State has power or effective control over the individual with respect to the right concerned. In other words, if an individual cannot exercise a human right or enjoy the protection of one because of a State’s action, international human rights law applies extraterritorially. As an illustration of this view, consider the case of a State that interferes with the ability of an individual located abroad to engage in electronic communications, for instance by hacking into the person’s email account and changing its password such that the individual no longer has access to the account. Because the State’s cyber operation restricts the individual’s ability to exercise the right to freedom of expression ( Rule 35 ), the State is in power or effective control of the individual with respect to the freedom of expression (but not, for instance, with respect to the right to liberty of movement Footnote 407 ). Note, however, that this only means that the rights are implicated; whether they have been violated is a separate determination. 11. All of the Experts also agreed that international human rights law treaty provisions setting forth the scope of the applicability of the instrument in question govern the issue of extraterritorial application. For example, there is some disagreement over whether the ICCPR applies extraterritorially. Irrespective of the existence of differing positions on this question, all of the Experts agreed that, as a scope provision, Article 2(1) governs the treaty’s extraterritorial applicability, or lack thereof. This observation is fundamental for those assessing the application of international human rights law in the cyber context because the bulk of such law is found in treaties governing the activities of the Parties thereto and because the precise scope of many aspects of customary international human rights law is unclear. 12. The International Group of Experts was split on the issue of whether an international human rights treaty that does not address the issue of extraterritoriality should be interpreted as applying extraterritorially or as limited to the territories of the States Parties to the instrument. Some of the Experts were of the view that unless a treaty so provides, the provisions thereof do not apply extraterritorially. They took the position on the basis that treaty provisions should not be interpreted so as to impose obligations on Parties to which they did not expressly agree. The others would apply the treaty provisions extraterritorially unless the treaty provides otherwise. The commentary that follows examines certain rights that the International Group of Experts found especially relevant in the cyber context. Footnote 409 These include the rights to freedom of expression, privacy, freedom of opinion, and due process. The omission of a purported international human right in this commentary is not to be understood as indicating that the Experts concluded it was not customary in nature. 2. Freedom of expression Footnote 410 is an international human right often implicated in the cyber context. This is not only because it is a right in itself, but also because an ability to exercise the right is sometimes necessary for the enjoyment of other human rights. Footnote 411 3. Consider State cyber operations directed at online forums, chatrooms, social media, and other websites. Such operations are likely to implicate the right of freedom of expression, for instance when the websites targeted are those of bloggers, journalists, or other individuals that disseminate information embarrassing to the State or to powerful individuals therein. If the expression is of a protected nature, States may only conduct the operations if they are designed to enforce lawful limitations ( Rule 37 ) the State has imposed on the freedom of expression. Similarly, a State could block individuals seeking to express themselves from accessing specific IP addresses or domain names, take down websites, employ filtering technologies to deny access to pages containing keywords or other specific content, or obstruct the sending of email, text, and other forms of point-to-point or group communications. These activities infringe upon the right to freedom of expression when not in accordance with Rule 37. It must be noted that such actions might also violate other rights, such as the freedoms of peaceful assembly and association. Footnote 412 4. Although it could achieve no consensus on the precise parameters of the right to freedom of expression, the International Group of Experts noted that restrictions on certain categories of expression, whether offline or online, are subject to particular scrutiny from an international human rights law perspective. Examples of these categories include discussion of government policies, politics, and elections, as well as reporting on human rights, government activities, and corruption in government. Footnote 413 5. Related to freedom of expression is the separate right to freedom of opinion. States must respect the right of individuals to hold opinions without interference. Footnote 414 Although the right to hold an opinion and freedom of expression are closely related, the International Group of Experts agreed that there is a distinction between the two. The right to hold an opinion freely is a guarantee so central to the object and purpose of international human rights law that, unlike the freedom of expression, its exercise may not be restricted. State conduct that interferes with the freedom of opinion includes online incitement against protected persons, online intimidation, or other forms of harassment conducted on the basis of a person’s views, such as political or religious views that are evidenced by membership in a political party or a religious denomination. The Experts noted that once an opinion is expressed, that expression is subject to limitations by the State in accordance with Rule 37. 6. The right to be free from arbitrary interference with one’s privacy is of central importance in the cyber context. Footnote 415 The International Group of Experts concluded that the right is of a customary international law character, Footnote 416 but cautioned that its precise scope is unsettled and that a number of States that accept the existence of the right take the position that it does not extend extraterritorially ( Rule 34 ).