|Multi-Stakeholder Public Policy Governance and its Application to the Internet Governance Forum|
The last category of limitations of international and transnational law to be discussed is the difficulty of applying uniform rules across a diversity of legal systems and cultures. Although the distinction can be a narrow one (particularly in Islamic states), the differences between national legal systems will be examined first, followed by consideration of ideological and cultural differences.
Unlike some of the jurisdictional issues that are magnified in an Internet-related context, issues of the universal application of international and transnational law across multiple legal systems are no novelty to international society. Thus, article 9 of the Statute of the International Court of Justice requires that common law, civil law and socialist law jurists be represented in the Court’s panel. But although these are the most prominent legal systems present within the membership of the United Nations (less so socialist law, of course, since the fall of communism in Eastern Europe and Russia), they are not the only ones. Notably omitted are customary and religious legal systems such as Hindu law, Talmudic (Jewish) law, and Islamic theocratic law, or Sharia.
Of these, Sharia law is applicable within the greatest number of member states to varying degrees, since there are states within the Muslim world such as Lebanon, Syria and Egypt that largely follow Western civil law, others such as Saudi Arabia, Oman and Yemen drawing strongly from the Sharia, and still others such as Iraq, Jordan and Libya possessing something of a hybrid.
There is a similar degree of heterogeneity within the other legal systems referred to above. For example the code law systems of East Asia are heavily influenced by Confucian ideas that of course are absent in Europe, and those of the new democracies in Eastern Europe bear the legacy of socialist law. Likewise, within common law systems, there is significant divergence between United States law and Anglo-Australian law.
One of the relevant differences between such legal systems is the structure and procedures of their legislative, executive and judicial institutions, which may impact on a state’s ability to comply with international instruments presupposing a different set of institutions and procedures. For example, Japan has interpreted references to its police force in international instruments to include the country’s fire service. They also may include constitutional differences, which may influence how international law is received into or implemented in domestic law. For example, since Australia’s international obligations are required to be implemented in legislation before having domestic effect, it is easier for Australia than for the United States to fall into non-compliance with a treaty that it has signed and ratified.
As noted above, these sorts of differences are nothing new to international law, and they are dealt with largely by leaving them up to the state to resolve. The Vienna Convention on the Law of Treaties provides in article 27 that “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” The only concession allowed on account of legal and constitutional differences between states is the acknowledgment in articles 19 to 23 that certain treaties may allow for signatories to accede with reservations in respect of specific articles. For example, there are extensive reservations (and interpretative declarations, whereby a party indicates its intention to interpret articles in a particular way) to the International Covenant on Civil and Political Rights.
As for transnational law, differences between legal systems may impact upon a state’s ability to participate in programmes of private law harmonisation with other states, although bodies acting in this area such as UNCITRAL have striven at least to include a balance of civil and common law traditions in its working groups. Such differences will also affect a state’s willingness to recognise foreign judgments. For example, the award of civil damages by jury in United States courts, which tend to be of much greater quantum than damages assessed by judges in other common law jurisdictions, has precluded Australia from adding the United States to those jurisdictions whose judgments will be recognised and enforced in Australia pursuant to the Foreign Judgments Act 1991.
Despite these issues, the difficulties of reconciling differences between legal systems are not widely taken as cause for a wholesale programme of legal unification. On the contrary, the advantage of a multiplicity of legal systems and laws addressing common problems is that this fosters jurisdictional competition, which can lead to the most efficient laws gaining an evolutionary advantage, and only then perhaps influencing law reform efforts elsewhere. On one (controversial) view, an example of this is found in the relative financial strength and quality of government of countries that have adopted legal systems based on the common law.
More importantly than supporting jurisdictional competition, taking a non-prescriptive approach as to the form of domestic law on the part of international and transnational lawmakers, and perhaps also allowing reservations to be made in respect of provisions that are manifestly unsuitable for adoption by a particular state, allows the difficult task of adapting the law for a variety of legal systems to be delegated to authorities at the domestic level. This is much the same approach—known as subsidiarity—that the EU takes in passing directives that prescribe an objective to be achieved, but not the form and means by which it is put into effect by member states.
Since the IGF’s contribution to transnational law will be in the form of non-binding soft law, it follows that the use of codes (whether so described or described as guidelines, best practice recommendations or the like), or even draft treaties, is to be preferred to the use of model laws in order to ensure that they are applicable across the greatest number of states.
More intractable than the differences between legal systems are the cultural and ideological differences between states. Ideologies are normally to be taken to be sets of political and economic values and beliefs, such as liberalism, socialism and fascism, whereas cultures are both broader—incorporating language, history, art, etiquette and so on—and at the same time narrower, in that states that share political ideologies may have vastly different cultures.
The history of most of the 20th century was characterised by a clash of ideologies, particularly the three major ideologies mentioned above. But the end of the Cold War to a large extent brought this era to an end, with liberal democracy apparently emerging victorious. This outcome has been characterised as the “end of ideology,” or by Fukuyama even as the “end of history.” What is it about liberalism that could account for its dominance, and why should this be expected to be more than transitory?
The liberal’s own answer is that liberal states aim to construct a society in which individuals are free to pursue their own conception of the good, consistent with the same freedom being afforded to others. The fundamental unit of value to the liberal is the individual human being, rather than the state, the community or the family.
The role to be assumed by the classical liberal state is therefore straightforward: to administer institutions that facilitate individual autonomy and inhibit interference with the same. Such institutions include the free market, private property, and human rights, which are assumed to be morally neutral, insofar as human autonomy (or as variously expressed the right to freedom, or equal concern or respect, or to be treated with equal dignity), is a transcendent, universal value.
However the assumption of the moral neutrality of the free market and private property has long been disputed, perhaps most vividly in the Communist Manifesto in 1888. Even within the liberal tradition itself, Rawls’ A Theory of Justice attempted to accommodate some of the intuitive unease of liberals at the disinterest of their ideology in distributive justice, by demonstrating that from a given (though contrived) original position in which they were ignorant of their own capacities and preferences, rational beings would forge a social contract that would not only uphold basic human rights for all, but would also limit social and economic inequality to cases where there is equality of opportunity for all, and the inequality improves the lot of the least fortunate member of society. This was a more egalitarian conception of distributive justice than the more libertarian normative liberal conceptions of the good such as Mill’s utilitarianism, or Posner’s wealth maximisation.
Although Rawls’ social liberalism addresses the objections of Marx to some degree in theory (as in practice do the social programmes of modern welfare liberal states), criticisms have also been made of another more fundamental assumption of classical liberalism: that human autonomy is a fundamental value, common to all human beings by virtue of their having been born into a free state of nature. This individualist assumption is challenged by communitarians on the ground that humans are not born as atomistic individuals but as members of families and communities, which contrary to the assumptions at least of Rawls’ original position, are partly constitutive of our identities. The true value of such communal orderings is therefore not counted either in the (“deontological”) liberalism of Kant and Rawls that recognises pre-legal rights and duties of individuals, nor in the calculus of utilitarian (“teleological”) liberalism.
However, unlike Marxism, communitarianism has no normative political program for the dismantling or radical reform of the liberal state. Indeed, without an underlying system of liberal rights and the rule of law, a communitarian society would have no safeguard against the community visiting tyranny upon minorities. Rather, the implications of the communitarian critique for the modern social liberal state, insofar as they are directed to the state at all, are largely limited to the greater inclusion of civil society in public policy development, and as discussed at length above this is precisely one of the programmes of reform that the liberal state and international society have already begun to undertake.
What liberalism can claim, that communism cannot and communitarianism does not attempt, is evolutionary success. The neo-Marxist criticisms of the 1960s and the communitarian critiques of the 1980s have been heard and the liberal state has sought to adapt accordingly, even if it has in a narrow sense lost theoretical coherence in doing so. Empirically, liberal states have come to dominate the globe, they generally have strong and stable economies, and have also maintained a remarkable record of peace with each other. By definition, liberal democracies are simply better at what they do—representing their people—than authoritarian and totalitarian states, as their authority is grounded in the legal-rational force of the liberal democratic order rather than purely on their territorial sovereignty.
Cultural differences can pose as much of an impediment as ideological differences to international and transnational lawmakers seeking to apply public policy uniformly across a multitude of states. Indeed, the difficulties are greater, in that cultural differences exist not only between liberal and illiberal states, but also amongst liberal states, as demonstrated by the Yahoo! dispute. And whereas there are perhaps a handful of major political ideologies, one of which has achieved dominance, there are hundreds if not thousands of distinct world cultures.
Of these, the impact of Islamic culture and its clash with Western culture, as epitomised most infamously by the events of 11 September 2001, have become one of the defining phenomena of the first part of the 21st century. It is of significance in this context that the Sharia broaches no clear distinction between law, politics and religion. Thus, to the Muslim the clash of cultures is just as much a clash of political ideologies. Moreover, at least in Islamic states that strictly apply Sharia law, Westphalia never happened; there is no division of religious and secular authority in the Muslim world.
An examination of the points of variance between Islamic culture and Western culture would exceed the scope of this thesis. But in general Western culture, reflecting liberalism itself, is far more individualistic than Islamic culture, which places greater emphasis on submission to the will of Allah than it does on individual autonomy and rights.
Consequently, international human rights instruments such as the International Covenant on Civil and Political Rights, which were drafted without the participation of most Islamic states, are incompatible with various provisions of the Sharia.
But by the same token, just as Islamic states may breach international human rights instruments which offend their cultural norms, those instruments fail to address grave breaches of Sharia law that are considered equally or more fundamental by Muslims as the freedoms enshrined in the International Covenant. Most notable amongst these grave breaches are defamation of Islam or of the prophet Muhammad, as allegedly perpetrated by the publication of cartoons depicting Muhammad in the Danish newspaper Jyllands-Posten on 30 September 2005, which resulted in protests and riots worldwide.
Given such dramatic gulfs between the cultural norms of the West and those of the Muslim world, how can it ever be possible for international and transnational lawmakers to settle upon a set of universal moral rules that are culturally neutral? Some commentators have indeed expressed the view that it will be difficult or impossible to do so.
If that is so, then Islamic states are faced with the prospect that they must simply find a way to accommodate Western liberal values if they wish to participate in international society; since for better or worse,
[v]irtually all of the norms that are now identified as essential ingredients of international law and global society have their roots in the jurisprudence of European scholars of international law and in the notions and patterns of acceptable behavior established by the more powerful Western European states.
Whilst the bias of international legal norms towards Western liberal values may be hegemonic from a Muslim perspective, and although “[o]ne cannot gain traction or start a normative dialogue with devout Muslims by quoting Locke or Kant,” even Muslims must agree that it is now too late to seek to call into question the cultural underpinnings of norms that have been accepted by the majority of United Nations member states, including states of other ideologies such as North Korea and Cuba.
Consequently, the most fundamental differences between cultures that impact upon international norms will continue to tend to be settled in favour of liberal states. For example in the context of Internet-related public policy, Internet access will be framed as a human rights issue. Specifically, article 19 of the International Covenant on Civil and Political Rights which protects the freedom to “seek, receive and impart information and ideas of all kinds” will prevail over religious considerations to mandate that reasonable Internet access be allowed to each state’s citizens.
On the other hand, even if this approach is defensible on liberal democratic grounds, the ultimate outcome of such trampling of Islamic cultural values is not difficult to fortell, as the fruits of the Jyllands-Posten caricature dispute demonstrate. Thus, the UN has endeavoured to reach a pragmatic medium with Islamic interests., and there have also been efforts to develop, if not a “thick consensus” that provides a complete system of culturally-neutral values for the development of international and transnational law, then at least a “thin” consensus on values which might be sufficient to establish a minimal set of determinate answers.
The way forward for international and transnational lawmakers in seeking a culturally sensitive medium for public policy development probably lies in between the extremes of strict cultural relativism, in which no culturally inappropriate international norms can be considered, and universalism in which the Western liberal paradigm is treated as universal and immutable. This middle ground of moderate cultural relativism requires some “minimum standard of protection [of human rights] that must be evaluated and legitimated through culture.” The programme of evaluating and legitimating international norms within the framework of Sharia would fall to liberal Muslims, in collaboration with others in international society.
So in summation, although there is no simple solution to the complex problem of how to accommodate cultural differences in international and transnational lawmaking, the beginnings of an answer are found in a fourfold approach:
Firstly, to engage affected cultural groups at all stages of policy development to see whether norms originating in the Western liberal tradition can be explicated in culturally appropriate forms—or, importantly, vice versa in the case of norms important to other cultures that they may seek to have recognised in international fora. Whilst this exercise is open to criticism on the ground that it seeks to retro-fit norms that presuppose underlying values of Western liberal individualism into a culture that does not hold those underlying values (or vice versa), it may still be the only workable compromise in a fundamentally multicultural world.
Second, the inability of an international forum to conclude an instrument that is universally culturally acceptable does not mean that the instrument cannot still be widely adopted. Even hard international law is not automatically binding on nation states, as they remain free either not to accede to it at all, or in some cases to do so with reservations. Thus if international or transnational law is developed with an intrinsic liberal character, it will only be appropriated by liberal actors: so be it. In the case of Internet-related public policy, this may be inevitable, as Internet culture largely reflects liberal values such as freedom of expression, and indeed embeds them deeply in its technical and social architecture. The Internet itself is not a culturally neutral artifact, any more than other communications technologies are. Internet-related public policy therefore cannot be expected to be either.
Third, it is common for certain issues, such as matters of security, to be left out of the sphere of the governance of an international regime, in which case national regulation is left to “fill in the gaps.” It is likely that the most contentious matters of Internet-related public policy can be dealt with in this way. For example, a policy on content regulation can be drafted in broad principles, leaving details to be implemented on a national level with regard to domestic cultural norms. Whilst this will not result in a uniform and comprehensive international content regulation regime, it will still be more than exists now. In fact for liberals, this is not merely a pragmatic compromise, but rather the just outcome in cases where cultural differences between peoples preclude a uniform approach.
Finally, and as a proviso to the other points, there may be some cases in which customary international law or even jus cogens has developed from which states are unable to opt out, even if it does conflict with their cultures. This is most likely to be the case in respect of human rights. In these cases, where the issues involved are ideological rather than merely cultural, there is likely to remain some trampling of cultural values that are plainly at variance with international norms. Little more can be said than that this is an instance in which the hegemony of the liberal majority is (justly, by its own standards) exercised over the illiberal minority. In most instances, this will not apply to the work of the IGF which is only involved in the development of soft law.
23 May 1969, 1974 ATS No 2 (entry into force 27 Jan 1980)
See Section 22.214.171.124.
WSIS, Tunis Agenda for the Information Society (2005), paragraph 77
Posner, R, Utilitarianism, Economics and Legal Theory (1979). It was also more strongly put, being accorded the ontological priority of a right, or “primary good,” which no individual conception of the good could displace: Rawls, John, A Theory of Justice (1971) , 93.
Certainly, these can be categorised into major groupings (“civilisations”), but this still leaves at least seven or eight.; on one account Western, Confucian, Japanese, Islamic, Hindu, Slavic-Orthodox, Latin American and possibly African: Huntington, S P, The Clash of Civilizations? (1993), 25.
Thagirisa, Pavani, A Historial Perspective of the Sharia Project and a Cross-Cultural and Self-Determination Approach to Resolving the Sharia Project in Nigeria (2003), 493–498. This is particularly evident in respect of the equal rights of women, as enshrined in Article 3 of the International Covenant. Schooley writes, “Regulating the life and home of a woman within a particular non-western culture by a universal measure that is in truth western offends the deeply religious culture of Islam. Islamic culture has no concept of the western standards embodied in international documents”: Schooley, Kimberley Y, Cultural Sovereignty, Islam, and Human Rights—Towards a Communitarian Revision (1995) , 659.
This approach is evident in the statement of Abid Hussain, Special Rapporteur to the United Nations Commission on Human Rights, that “The instinct or tendency of Governments to consider regulation rather than enhancing and increasing access to the Internet is ... to be strongly checked:” ECOSOC, Report of the Special Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and Expression (1999), and compare also Council of Europe, Recommendation of the Committee of Ministers to Member States on Measures to Promote the Public Service Value of the Internet (2007) .
Franck, T M, Fairness in International Law (1995). The “golden rule,” or the ethic of reciprocity (that is, that one should treat others as one wishes to be treated by them), has been suggested as a plausible value that is common to almost all religious traditions, and for that matter almost all secular ethical traditions dating back at least to Hobbes (see respectively Lepard, Brian D, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (2002) , 50–52, and Hobbes, Thomas & Curley, Edwin, The Leviathan (1994), 99). In fact, the Declaration of Independence of Cyberspace nominates it as a shared value for the online community as well. However such a general principle does not scale to a sufficient level of granularity to account for all principles of international law; for example, it may not prevent the amputation of limbs as a punishment for theft as the Sharia allows: Schooley, Kimberley Y, Cultural Sovereignty, Islam, and Human Rights—Towards a Communitarian Revision (1995) , 688–689.
Etzioni, Amitai, Leveraging Islam (2006). This approach is reflected in the new constitutions of Afghanistan and Iraq, the former of which provides in Article 3 that “In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam,” yet in Article 7(1) that “The state shall abide by the UN charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights”: Constitution of the Islamic Republic of Afghanistan, 4 Jan 2004.
Goldsmith, Jack L & Wu, Tim, Who Controls the Internet?: Illusions of a Borderless World (2006), 152–153. It is also consistent with the principle of subsidiarity: see Section 126.96.36.199.
A practical example of this is found in the approach advocated by the Keep the Core Neutral campaign that opposes ICANN’s application of cultural as well as technical standards for the approval of new gTLDs (see http://www.keep-the-core-neutral.org/), on the basis that “[i]f Saudi Arabia objects to the .allah domain or the Vatican city dislikes .jesus then they will be free to block them, but we should not limit the capabilities of the network just because of these sectional interests”: Thompson, Bill, Time To Led a Thousand Domains Bloom? (2007). The Council of Europe’s Cybercrime Convention also illustrates this approach, in that its provisions to curb the promulgation of xenophobic content online are contained in an Additional Protocol against Racism, in order to allow countries such as the USA for whom these provisions conflict with free expression principles to ratify only the balance of the Convention.