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Free International law March 2010


  • 1.A utopia to free International law from the past-oriented conditionings of national jurisdiction and state sovereignty Professor Dr. iur. Christian Koenig, LL.M. Director, Center for European Integration Studies, Rheinische Friedrich-Wilhelms-University Bonn PROSPECTIVE 21OO Confrence 21OO N 110 du 10 mars 2010 ISEP, Paris

2. The traditional International legal paradigm

  • Centred around the Westphalian concept of the nation state.
  • Territoriality: states are territorial entities which exercise control over activities within their defined geographic areas.
  • National jurisdiction: states define and enforce rules governing activities within the state; a monopoly on the use of force within its defined boundaries.
  • State sovereignty: nation states answer to no higher authority; they are capable of acting independently from other states.
  • The law of states, and of states agreements.

3. The ECSC - a radical approach in another time and place

  • The European Coal and Steel Community (ECSC) Treaty of Paris, 1951.
  • Created in response to a specific problem at that point in time: how to make war not only unthinkable but materially impossible (Robert Schuman).
  • A radical approach creation of a supranational authority residing above the nation state (in certain specific areas).
  • Highly functional states can not wage war without coal and steel.
  • Adaptive incorporating new areas of competence as time and circumstances require (and political will supports).

4. A radical new approach forour time and place (1)

  • Advances is technology have altered our concepts of time and space.
  • Geographic distance is no barrier to communication.We can travel between countries at a rate that would have been incomprehensible a hundred years ago.
  • National boundaries are porous.The fiercest border guards can not halt the movement of radio waves or the falling of acid rain.

5. A radical new approachfor our time and place (2)

  • The time is right to consider how to deal with new, emerging transnational issues, and in order not to waste this opportunity, we should strive not to be constrained by our experiences of the past.
  • It would be foolish not to learn historys lessons, but such lessons should inform rather than bind us.We should remain open to all possibilities, and not be afraid to consider radical or dramatic new approaches.
  • Most of all, we should make decisions based on the information we have available to us now, and not based on our preconceived notions of how things are and must be.

6. The realm of the internet (1)

  • There is no one internet, just many different inter-connected networks of computers, with no centre, no single point of control and no set structure.
  • In so far as we can map the internet, each line represents a connection between different (even smaller) networks of computers.
  • Image courtesy of The Opte Project ( http://opte. org ) creative commons license.

7. The realm of the internet (2)

  • No red lines drawn on this map - these interconnections do not respect the territorial boundaries on which traditional international law is based.
  • The language of the internet is physical: we visit websites and send email. But how can you regulate something which exists everywhere and nowhere?
  • Image courtesy of The Opte Project ( http://opte. org ) creative commons license.

8. Is law still related to land?Can governments control the internet? (1)

  • Territorial approach: whatever the nature of the internet itself, two computers are still connected to each other; those computers and their users reside in the physical world (and are capable of state control).

9. Is law still related to land?Can governments control the internet? (2)

  • Therefore national law applies to the internet in the same way it applies to the physical world:
    • states can regulate what content is available to users of computers located within the geography of the state;
    • defamation laws apply if the content is accessible in the state;
    • national copyright and IP law apply;
    • states can block access to web content via proxy servers; and
    • government controlled/ sponsored censorship of online fora.

10. Is law still related to land?Can governments control the internet? (3)

  • Classic example of this approach:France v Yahoo .
  • States who subscribe to this approach: many. Approaches vary in degree:
    • Burma and North Korea - accessing the internet is highly restricted and is a criminal offence.
    • China and Saudi Arabia - install physical proxy servers to regulate internet content and make extensive use of human and technological censorship.
    • Most countries of the EU - use Internet Service Providers and search engines to filter content (eg ISPs block child pornography and Google.fr and Google.de remove Nazi-related listings as those national laws require).

11. Problems with state control of the internet

  • The traditional state approach requires someone to prosecute an ISP or search engine needs to be within the geography of the state or in a state which will extradite.
  • Violates the principle that ISPs are mere carriers of data intermediaries who are not responsible for content.
  • Is a blunt tool which makes no differentiation between users, ie over or under 18 years old; blocked material is not available to anyone.
  • Technological tools to circumvent anonymising software, routing internet connections through alternative ISPs, certain satellite technologies.
  • Prohibitively high costs to enforce fully.

12. The internet itself requiresa new approach (1)

  • The internet is a technical creature and so the rules and regulations governing what can, and can not, be done within, on, or in relation to it are also necessarily technical.
  • Code is law the rulebook for the internet is based on software code rather than on national legislation.Parameters are set by protocols (sets of rules which allow computers to communicate with each other).Failure to comply with the standard internet protocols may mean that your email or request for data (ie to visit a website) will simply not go through.

13. The internet itself requiresa new approach (2)

  • Each computer connected to the internet has an IP address a string of numbers which is unique to it and which allows other computers to find it.
  • For convenience, we usually use words rather than numbers to identify website.A word-format internet address is known as a domain name.
  • Domain names are divided into categories depending on what comes after the dot .com, .org, .de, .fr, etc.
  • There are a limited number of these top level domains and they are regulated by an organisation called the Internet Corporation for Assigned Names and Numbers (ICANN).

14. ICANN a new way to regulate (1)

  • ICANN is a non-profit corporation under Californian law; two of its primary tasks are to allocate IP addresses and to arbitrate disputes relating to domain names.
  • When it comes to enforcing its decision, or that of its arbiters, ICANN has no traditional state-like tools it can not impose fines, seize property or order custodial sentences.
  • Instead, ICANN controls the set of computers to which all other computers worldwide look when they are seeking to find a particular IP address.

15. ICANN a new way to regulate (2)

  • After an arbiter has ruled on a dispute, that decision is implemented in the root database the conflicting website is removed and can no longer be accessed on the internet, through any means.It simply ceases to exist.
  • ICANN employs the ultimate functional approach, and one which is effective worldwide, with no regard for territorial boundaries.

16. Can we apply the ICANNmodel more broadly? (1)

  • Governments often seek to control the internet content available to their citizens on the grounds of public health and welfare.However, their traditional territory- and sovereignty-based approaches are inefficient and ineffective.
  • ICANN is successful because it only acts in areas in which it knows it can be effective it only fights battles it can win.
  • State governments are unlikely to win certain internet-related battles using conventional means.

17. Can we apply the ICANNmodel more broadly? (2)

  • Therefore any effective solution to governing the internet likely needs to be universal, as well as more technically-oriented.
  • States should confine their regulatory approaches to physical matters and employ more creative means when seeking to exercise their jurisdiction over virtual network functions.

18. Current approach to large-scale transnational environmental issues (1)

  • Based on the principles of traditional international law the United Nations.
  • Idea is that these kinds of environmental issues are a global problem,