29. In Costa Rica’s view, States also have a general obligation to ‘take all appropriate
measures to prevent significant transboundary harm or at any event to minimize the
risk thereof’, where such harm originates from their territory or jurisdiction and significantly
affects persons, property, or the environment in other States.60 This customary obligation
applies to the physical consequences of significant transboundary harms beyond the
ecological environment, whether or not the activity causing the harm is lawful or not under
international law.61 Costa Rica also believes that this duty applies to non-physical harms to
persons, property or the environment, including those caused through or to ICTs.62 Examples
include instances of online incitement to violence, hostility or discrimination and disinformation
campaigns causing harm to individuals, irrespective of whether they are contrary to a State’s
sovereign or other rights.
30. A standard of due diligence is also found in certain obligations under international human
rights law and international humanitarian law, addressed below.
International human rights law
31. As affirmed by the UN Human Rights Council, human rights apply online just as they do
offline.63 States have obligations to respect, protect and ensure the enjoyment of a range of
human rights, including civil and political rights as well as social, economic and cultural
rights.64
32. Under certain human rights treaties, such as the International Covenant on Civil and Political
Rights65 and the American Convention on Human Rights,66 those obligations are subject to a
State’s jurisdiction. In Costa Rica’s view, jurisdiction goes beyond a State’s territory, areas or
persons under its physical control. It extends to all human rights over whose enjoyment the
State exercises power or effective control, regardless of any physical proximity.67 This means
that, under those treaties, States must respect, protect and ensure human rights that are
exercised online or via ICTs and over whose enjoyment a State exercises effective control.
ILC, ‘Draft articles on Prevention of Transboundary Harm from Hazardous Activities, with
commentaries’, A/56/10, Articles 1-3 and commentary; Trail Smelter Case (USA v Canada) (1941) 3 RIAA
1911, at 1963; Pulp Mills on the River Uruguay, Case Concerning (Argentina v Uruguay), Judgment, 20
April 2010, ICJ Reports (2010) 14, paras 101, 187, 197, 204, 223.
61
Fourth report on international liability for injurious consequences arising out of acts not prohibited by
international law, by Mr. Robert Q. Quentin-Baxter, Special Rapporteur, A/CN.4/373 and Corr.1&.2, 1983,
para. 17.
62
E.g., Articles 1-5, 1936 International Convention concerning the Use of Broadcasting in the Cause of
Peace.
63
UN Human Rights Council, Res. 32/13 (‘The promotion, protection and enjoyment of human rights on
the Internet’), A/HRC/RES/32/13, 1 July 2016, para. 1.
64
E.g., Article 2(1) International Covenant on Civil and Political Rights 1966, 999 UNTS 171 (‘ICCPR’);
Article 2(1), International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3
(‘ICESCR’).
65
Article 2(1), ICCPR (n 64).
66
Article 1(1), American Convention on Human Rights 1978, OAS Treaty Series No 36, 1144 UNTS 123.
67
UN Human Rights Committee, HRC, General Comment No. 36 (2018) on Article 6 of the International
Covenant on Civil and Political Rights, on the Right to Life, CCPR/C/GC/36, 30 October 2018, para. 63.
60
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