3.5. Internet governance as law

The purpose of this chapter was to survey the field of international law, as the dominant international order for the governance of public policy issues, in order to describe the context in which any institution seeking involvement in Internet public policy governance must operate. In the course of this survey, it has been revealed that apart from international law there are also other international orders for the governance of public policy issues, of which the new law merchant is a specific case, and which in their generalised context have been described as transnational law.

The obvious question that remains, and which has been touched on obliquely but not resolved, is whether Internet public policy governance takes place, or will in the future take place, in the environment of international law, or transnational law—or perhaps both, or neither.

As outlined in Chapter 2, the most mature institutions for governance of the Internet are those involved in standards development, rather than those involved in public policy governance. Since international standards are as we have seen a form of soft law,[1] it is therefore arguable, for what it is worth, that Internet standards already constitute international law.

Similarly, the regime that has been described in this thesis as technical coordination also constitutes international law in the same “soft law” sense. ICANN, the preeminent body of technical coordination of the Internet, is an active subject of international society, directly entering into agreements with states over ccTLD administration,[2] and convening its own intergovernmental advisory panel, the GAC.

Although it may have been accurate in earlier days to say that bodies such as ICANN “have no authority and no ability to implement anything, other than what they care to make available and hope that people use,”[3] ICANN’s perceived legitimacy and thereby its authority have grown as its actions in the administration of the DNS system have been accepted (or at least not directly challenged) by states.[4] At the very least, this illustrates that ICANN operates as a subject of international society under de facto delegation from the international community.[5]

Is it possible to go further and contend that the international legal order, by accepting the ICANN regime, has elevated it to the status of customary international law? There is certainly widespread state practice to support such a contention; universal in fact if the use of ccTLDs under the ICANN root is used as a measure.[6]

Opinio juris is more difficult to demonstrate without empirical evidence, of which none has been collected, but there is no reason in principle why this could not be found and why customary international law could not therefore form from the norms of the Internet community,[7] either directly or by the intermediate soft law stages of an international code (such as the Incoterms), or standard (such as the International Code of Signals). Arguably, such norms have already impacted upon the development of Internet-related domestic law.[8]

However it must be acknowledged that even if the ICANN system for management of the DNS root has attained (or is on the way to attaining) the status of customary international law, Internet governance at large as outlined in Chapter 2 involves far more than just ICANN. Whilst its various other constituent institutions from all stakeholder groups (the IETF, the W3C, the EFF, the LAP, the ITU, WIPO, CERT, TRUSTe, the OECD, UNCITRAL and many others) may be accepted by state and non-state actors alike as legitimate authorities in their fields, the corpus of their work is not accepted as international law.

But if the governance of these institutions is acknowledged by the existing international order as legitimate and authoritative, yet is not accepted as law, then what is it accepted as? A regime is the most obvious answer. And what is a regime, but part of an autonomous transnational legal order distinct from and coexistent with that of orthodox international law. The acceptance of the regime of Internet governance as an autonomous legal order is shown both in the words of international actors—the very words of the Tunis Agenda acknowledge it[9]—and also through their actions, such as their conclusion of agreements with ICANN and their passage of domestic and international instruments that complement rather than seeking to trump the existing regime.[10] A like case is the way in which states recognise and support the new law merchant through accession to the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration which reinforce the transnational commercial arbitration regime.

Recognition of Internet governance as a regime is not limited to the United Nations. It is also accepted by scholars such as Spar who considers it as a private international regime,[11] and Franda who considers it an international regime in formation, in which the parameters of its governance are shaped by “a wide variety of private business firms, governments, universities and scientific, professional and epistemic communities spread across the globe.”[12]

However the terminology of regime theory, being rooted in international relations theory, obscures something very important about Internet governance that has been lost since we have ceased to speak of its reception into customary international law, and that is the scope for the institutions of Internet governance to be seen as law (for a regime is nothing other than transnational law, restricted to a single issue-area).[13]

It is important to make that point, because if it is not made, it is implicitly being accepted that governance of the Internet fundamentally depends for its force upon the old Westphalian system of international and domestic law. While it is true that some of the institutions acting in Internet governance remain loosely tied to that system (ICANN to the United States government, the IGF to the United Nations), it is vital to comprehend that the transnational law that they create need not be so tied, loosely or otherwise.

This is not to say that the two systems of law cannot interact. They can, and inevitably will. But the fundamental point is that the transnational law of Internet governance need not collapse if states ceased to take any part of it. It need not even do so even if states ceased to recognise it, as they do at present, for a state’s failure to recognise an independent and coexistent system of law does not extinguish it.[14]

Having said that, in practice the fate of the nascent regime of Internet governance as it matures under the leadership of the IGF remains a matter of speculation. Whilst it does have the potential to flourish into a fully formed transnational legal institution that would survive cut free of its roots, there is also the risk that it will become dominated by state hegemony and be absorbed into the old international legal system.

It is important that the IGF does not allow this to happen, becoming just another intergovernmental organisation beholden to its Westphalian masters, but rather that it should live up to its mandate to initiate “a transparent, democratic, and multilateral process, with the participation of governments, private sector, civil society and international organizations.” How the IGF is to do this is question to be examined in the next chapter.

Notes

[1]

See Section 3.3.2.

[2]

See http://www.icann.org/cctlds/agreements.html.

[3]

Rutkowski, A, Regulate the Internet?: Try If You Can (1999)

[4]

Hurd, Ian, Legitimacy and Authority in International Politics (1999); Strange, Susan, Territory, State, Authority and Economy: A New Realist Political Ontology of Global Political Economy (1997) . On one view though, the contribution to this phenomenon of the underlying authority of the United States government should not be underestimated: Froomkin, A M, Form and Substance in Cyberspace (2002), 94. On the other hand see Section 5.1.4.1.

[5]

Council of Europe, Building a Free and Safe Internet (2007), 7

[6]

The final ccTLDs—those for North Korea (kp), Serbia (rs) and Montenegro (me)—were delegated in 2007, though no request has been recognised for a delegation of the Western Saharan ccTLD (eh), as the country’s sovereignty is disputed: see http://www.iana.org/cctld/cctld-whois.htm.

[7]

Weber, Rolf H, Regulatory Models for the Online World (2002)

[8]

Biegel, Stuart, Beyond Our Control?: Confronting the Limits of Our Legal System in the Age of Cyberspace (2001), and see 1267623 Ontario Inc v Nexx Online Inc (unreported Ontario Superior Court of Justice, OJ No 2246, decided 14 June 1999) in which it was ruled that “sending unsolicited bulk e-mail is in breach of the emerging principles of Netiquette, unless it is specifically permitted in the governing contract.” Compare also Mueller, Milton, Net Neutrality as Global Principal for Internet Governance (2007) .

[9]

See Section 3.1.2.1.

[10]

For example, the Spam Act 2003 (Cth) and the UNCITRAL Model Law on Electronic Commerce.

[11]

Though she allows that the private sector will control “not the Internet of course, but their own growing corners of commerce and communication ... through a combination of formal and informal rules, administrative and technical means”: Spar, Debora L, Lost in (Cyber)space: The Private Rules of Online Commerce (1999), 48.

[12]

Franda, Marcus F, Governing the Internet: The Emergence of an International Regime (2001), 5

[13]

Rosenau, James N, Governance, Order and Change in World Politics (1992), 8

[14]

Mabo v Queensland (#2) (1992) 175 CLR 1