The “guarantee-rights” for realizing the rule of law.

Meryem Marzouki (1, 2)

1 CNRS - Centre National de la Recherche Scientifique
2 NPA - Networks and Performance Analysis

When addressing the global issue of human rights in the information society, and how these rights may translate in such a context, one immediately thinks of civil and political rights that should be directly and naturally exercised through information and communication means, or protected against their misuse. These obviously include the right to freedom of expression and to seek, receive and impart information, the right to access public information and to take part in the conduct of public affairs, and the right to privacy. Then, following a vision of an inclusive information society where all categories of individuals, social groups, minorities and peoples should have access to information and communication – where access not only means access to infrastructure but also appropriation and use of technology for empowerment and social justice – come issues related to non discrimination, such as the right for men and women to equally enjoy all rights, rights for minorities to enjoy their own culture and to use their own language, the right to education and knowledge and to participate in the cultural life, to enjoy the benefits of scientific progress and its applications, the right to development and the principle of non-discrimination itself. Furthermore, in an extended understanding of the concepts of association, assembly, movement, etc., the right to freedom of peaceful assembly and association emerges as an issue to be addressed in this context too. However, despite intense regulatory and legislative processes occurring for almost a decade at the national, regional and international levels, and despite many references to the rule of law in official outcomes of the first phase of the World Summit on the Information Society (WSIS) in Geneva in December 2003, fundamental human rights like the right to a fair trial, the right to the presumption of innocence, the right to an effective remedy, the right to equality before the law, and the principle of no punishment without law are seldom if ever addressed in the information and communication context. The purpose of this chapter is to provide rationale to the legitimate inclusion of these rights in the debate on human rights in the information society, showing how, as “guarantee-rights”, they are necessary conditions to the realization of the rule of law and thus to the effective enjoyment of all other human rights; how they have been particularly challenged by regulatory and legislative processes that make procedural rather than substantive changes in the legislation; and, finally, how these rights may be upheld and effectively implemented in the information society.

Mots clés: Human rights; Information society; Fair trial; presumption of innocence; effective remedy; equality before the law; principle of no punishment without law

Domaines: Science politique

Meryem Marzouki. The “guarantee-rights” for realizing the rule of law. : Fair trial, presumption of innocence, effective remedy, equality before the law, and the principle of no punishment without law. Rikke Frank Jørgensen. Human Rights in the Global Information Society, MIT Press, pp.197-218, 2006, 9780262101158. ⟨hal-01295081⟩