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

Conférence 21OO N° 110 du 10 mars 2010

ISEP, Paris

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.

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).

A radical new approach for our 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.

A radical new approach for 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 history’s 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’.

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.

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.

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).

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.

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).

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.

The internet itself requires a 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.

The internet itself requires a 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).

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.

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.

Can we apply the ICANN model 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.

Can we apply the ICANN model 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.

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, and so they require global solutions.

All states, large and small, developed and developing, are invited to form a consensus on the global approach.

Current approach to large-scale transnational environmental issues

(2)

Kyoto Protocol to the UN Framework on Climate Change: Annex I (developed) countries agree to binding

reductions of emissions. Annex II countries (including ie China and India)

and non-ratifying countries like the US and Australia are not bound by emissions reduction targets.

Copenhagen – agreement of general principles, but no binding commitments or other effective approach agreed.

Problems with the current approach (1) Kyoto and emissions targets are only one possible

approach, but at the moment they are ‘the only game in town’.

Global warming is a massively complex phenomenon and should not be reduced to quotas of emissions of a few chemicals.

Not all countries are capable of having a real effect on large-scale transnational environmental issues. For example certain countries produce far more emissions than others (the US, China and the EU are far ahead of all the others, followed by Russia, India and Japan). These are the key countries which need to agree a common approach, not the 192 represented at the UN

Problems with the current approach (2)

Economic imbalances in the global economy mean that any structural adjustments as to the use of natural resources, methods of production or our modern way of life need to come from countries which are capable (if currently unwilling) to implement such changes.

Country %of global total of carbon dioxide emissions (2006)

China 21,5

USA 20,2

EU 13,8

Russia 5,5

India 5.3

Japan 4,6

Rest of the world 29,1

Alternative approaches (1.1): functional rather than ideological

Past experiences have shown us that it makes sense to cooperate regionally regarding environmental issues. Danube River – since 1856 the states through

which the Danube flows (which have changed greatly over time) have cooperated to ensure free navigation for ships of all flags, and more recently, to ensure ecological protection for the river.

Baltic Sea Area – since 1974 states bordering the Baltic Sea have cooperated to manage pollution from land- and sea-based sources.

Alternative approaches (1.2): functional rather than ideological

The EU is the best example of an ongoing functional cooperation between nation states. Beginning with the ECSC, the EU has evolved from

a free trade area to a customs union, to a single market, to a single market with (something of a) common currency.

Policy areas are clearly defined – some are the responsibility of the Union, some of the Member States and some are shared.

The EU avoids legislating on the basis of ideology – it does not become involved in Ireland’s abortion debate, or the legality of Spain’s bullfighting.

Instead, its brand of ‘negative integration’ facilitates the development of the internal market – a functional rather than ideological approach.

Alternative approaches (2.1): contractual rather than voluntary

The Kyoto Protocol can be said to be “binding” in that there are penalties for states who fail to meet their emissions targets. However, as always in the realm of traditional international law, who will enforce these penalties?

We should look, instead, to create a truly binding international structure, more along the lines of the EU.

European law binds Member States and can be relied upon directly by EU citizens.

Alternative approaches (2.2): contractual rather than voluntary

Should a Member State fail to comply with its obligations, the European Commission (or another Member State) can bring it before the Court of Justice of the European Union.

Member States are obliged to comply with the rulings of the Court, and should they fail to do so, the Court may impose a lump sum fine or penalty payment on the Member State.

Citizens of Member States may also claim damages for that State’s failure to comply with its obligations under EU law.

Alternative approaches (3.1): discriminatory rather than inclusive

An inclusive approach might be the best approach ideologically, but is it the best approach practically?

A treaty negotiated by 192 very different states is necessarily going to be more general than one negotiated by five, ten or even 25 states.

Again from the EU example – not all Member States like to participate in EU projects to the same extent; a system of ‘opt-ins’ and ‘opt-outs’ has developed which allows European integration as a whole to continue, whilst taking account of differing national views. For example:

Alternative approaches (3.2): discriminatory rather than inclusive

27 Member States make up the EU; 16 Member States participate in the single

currency; 25 states make up the Schengen Area (not

including five EU five Member States but including non-members Iceland, Norway and Switzerland);

31 states make up the European Customs Union (the EU 27 plus Turkey, Andorra, Monaco and San Marino).

This kind of ‘variable geometry’ might also be of use in dealing with large-scale environmental issues – some countries may be willing to go further than others, and those countries should not be held back by their more reluctant colleagues – a race to find the lowest common denominator.

Alternative approaches (4.1): innovative rather than conservative

Research and development into alternative energy sources and new technologies needs a massive increase in funding. It should be put on a ‘wartime’ footing – as much money is spent globally on military research should be spent on environmental R&D. In the US alone that would amount to USD 80 billion each year.

Innovative forms of international cooperation are needed. See for example:

Alternative approaches (4.2): innovative rather than conservative

The ITER cooperation headquartered in Cadarache, France in which the EU, US, China, India, Russia, Japan and South Korea are pooling technology and resources to pursue viable nuclear fusion technologies.

Open source software and open innovation projects in which intellectual property is shared freely, not subject to proprietary rights.

Harnessing spare computing power and storage to progress scientific investigations – voluntary distributed computing projects such as climateprediction.net in which participants allow their computers’ spare capacity to be used for mass computations relating to models of climate change.

How can we develop a better approach to today's pressing environmental

issues? (1) Whilst a universal approach is a worthy idea in

principle, it simply may not be the most efficient or effective approach to an increasingly serious, and urgent, problem. We should not let a desire for inclusiveness stand in the way of real solutions.

A supranational approach is needed - the development of the ECSC from the (literal) ashes of World War II and its evolution into the EU of today shows us that nation states can choose to surrender their traditional national sovereignty in specific, pragmatic, areas in order to achieve greater aims than could be hoped for by a single state.

How can we develop a better approach to today's pressing environmental

issues? (2) Measures must be binding, and actually effective:

Governments and industries should assemble in a supranational organisation and draft binding rules and codes of conduct which are supervised by a supranational body.

That body should possess real powers of

intervention and be capable of enforcement at the source of the problem.

General conclusions (1)

The legal profession likes certainty, and rightly so - certainly individuals should know what rights, responsibilities and remedies apply to them in order to make informed choices in their lives.

However, there is a danger that this traditionalism, this predictability, begins to exist for the wrong reasons.

Although it is tempting to adhere to traditional notions of law simply because ‘this is the way things are done’, to do so would be unfortunately short-sighted.

General conclusions (2) We are agents of reason and have the ability to

make conscious choices about how to approach the issues before us. Governments of nation states should try to do the same and open their minds to radical, creative and even heretical approaches in order to make wiser decisions.

The parable of the rattlesnake:

Professor Dr. iur. Christian Koenig, LL.M.

Director, Center for European Integration Studies, Rheinische

Friedrich-Wilhelms-University BonnContact details:

Langer Grabenweg 53 53175 Bonn

Phone: +49 (0) 228 - 93 79 78 Fax: + 49 (0) 228 - 93 79 78 76 Mobile: +49 (0) 171 - 211 31 75 E-Mail: profkoenig@gmx.de