About the Conference

At a time of geopolitical uncertainty and with multilateralism under pressure, this conference brought together diverse actors to explore the evolving role of international law on critical security and economic issues in the Asia-Pacific. From trade agreements to deep-sea mining, cyberwarfare to territorial disputes, the breadth of the discussion illustrated the growing reach of international law in the region.

Hosted by the International Law Programme and the Asia-Pacific Programme at Chatham House on 27 March 2019, the conference focused on three themes: trade and investment, maritime security and governance, and emerging security challenges. What trends are emerging in terms of engagement with international law in the region, and how can international standards play a greater role in encouraging collaboration and reducing tensions? And, with the eastward shift in geopolitical power, how will Asia-Pacific states shape the future of international law?

Internet shutdowns in Asia have become frequent and persistent, an ominous sign of shrinking public space for debate and discourse. The shutdowns have become an irresistible option for governments of all stripes and ideological affiliations. Democratic India, Sri Lanka, Indonesia and the Philippines are prodigious offenders. So are Asia’s more repressive regimes, notably China.

In their defence, governments have offered real and imagined threats to national security as reasons for shutting down the pipes. It is useful to examine these claims as well as to objectively frame the issue. Are internet shutdowns in Asia legitimate and can be defended and explained as threats to national security? Or should we take a broader approach where international law, norms, values, rights and indeed economic stability could be invoked to curb this invidious practice?

Let’s start with the shutdown in Kashmir, where Indian authorities clamped down on internet access for a straight 165 days, described by rights group Access Now as the ‘longest shutdown ever in a democracy’. The Kashmir Chamber of Commerce and Industry estimates that the shutdown had huge economic costs, estimated at over £1.9 billion.

The economic cost of the continuing surveillance and shutdown in China’s Xinjiang province is likely to be higher. But India is a democracy and could be a role model, which is why the recent assertion of Communications and Information Technology Minister Ravishankar Prasad is worrying. He asserted in Parliament that the Indian citizen’s right to the internet was not a fundamental right. ‘While right of internet is important, security of the country is equally important…Can we deny (that) the internet is abused by terrorists…?’.

The minister’s primary defence of the shutdown – that the internet was being abused by terrorists and others to foment unrest – has some merit. Our starting point therefore is that big tech platforms should be doing a significantly better job in monitoring content and in removing material designed to provoke violence and hatred. This is the original sin and Asian governments are right to worry about messaging platforms, for example, becoming preferred channels for venom and hate speech.

To date, the big tech firms have made the right noises about monitoring and moderating content, but they have not gone far enough, providing governments with the excuse to routinely shut down access. To be blunt, self-regulation of the platforms is not working and tougher global regulation, enforcement and sanctions, possibly via the G20, would help.

At the same time, better policing of the platforms will not resolve the issue entirely because governments regard internet shutdowns as a useful way to restrict human rights and to consolidate political control and surveillance over citizens. The international community – including nation-states, NGOs and the private sector – needs to come together and embrace two overarching principles:

First, digital access is a fundamental human right and integrated into global declarations and norms.

Second, to protect fragmentation and Balkanization of the internet, the digital pipes which carry data across national boundaries should be embedded into international law as being part of the global commons (just like oceans are under maritime law). This would raise the bar on countries which frequently restrict digital access to their citizens.

Sensible though these recommendations might seem, it is obvious that many Asian governments would be loath to sign up to global declarations which would limit their policy options at home. There is an economic dimension to internet shutdowns, as the Kashmir case makes clear, which could be addressed by naming and shaming, just as the OECD’s Financial Action Task Force does for countries falling foul of money laundering regulations. Recommendations include:

• Digital access should be included in the UN’s Human Development Index.
• The World Bank’s closely followed Doing Business Index (DBI) should score countries favourably based on their commitment to offering unimpeded access to the internet. China and India watch the DBI rankings very closely and will be forced to pursue a more liberal approach if their rankings fall precipitously.
• Since internet shutdowns have a clear economic cost, particularly in payments and financial services, the International Monetary Fund (IMF) should make an annual determination of member countries (as part of its surveillance mandate) of the impact of shutdowns on economic activity and financial stability.

Finally, all Asian governments have declared a public commitment to drive financial inclusion by providing digital access and identity to the poor and vulnerable. This mandate is at odds with frequent internet disruptions. A small vendor in Kashmir, Xinjiang or elsewhere in the region has limited or no recourse when the pipes are shut down. Central banks in the region need to step in by offering some level of protection, just like deposit insurance coverage.

It is clear that many of these recommendations would be rejected outright by many Asian governments. They regard internet shutdowns as part of their policy toolkit to deal with external and internal threats to national security. In pursuing such a rigid approach, governments are wilfully curbing their citizens’ space for debate and ignoring a much broader issue of rights to digital access.

Armed with a hammer, it is tempting for governments to regard the internet as a nail. The international community and citizens’ groups have an obligation to make such hammering very expensive.