<html><head><meta http-equiv="Content-Type" content="text/html charset=iso-8859-1"></head><body style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; "><div><div>On Apr 17, 2013, at 9:18 AM, Andrea Glorioso <<a href="mailto:andrea@digitalpolicy.it">andrea@digitalpolicy.it</a>> wrote:</div><br class="Apple-interchange-newline"><blockquote type="cite"><div dir="ltr">(And here I hit my two-messages-per-day limit, but John raises some very interesting points)<br></div></blockquote><div><br></div>Mea culpa :-)</div><div><br></div><div><blockquote type="cite"><div dir="ltr"><div class="gmail_extra"><div class="gmail_quote">On Wed, Apr 17, 2013 at 4:37 PM, John Curran <span dir="ltr"><<a href="mailto:jcurran@istaff.org" target="_blank">jcurran@istaff.org</a>></span> wrote:<blockquote class="gmail_quote" style="margin: 0pt 0pt 0pt 0.8ex; border-left-width: 1px; border-left-style: solid; border-left-color: rgb(204, 204, 204); padding-left: 1ex; position: static; z-index: auto; "><div style="word-wrap:break-word"><div><div><br></div>Agreed. Sometimes a government's public policy goals require engagement with other </div><div>governments (which is by definition activities beyond their borders) I was, probably </div>
<div>unsuccessfully, trying to note the distinction when it comes to enforcement, where the</div><div> most common accepted practice is that a government enforces laws and regulations </div><div>(such as those from treaties with other governments) with respect to those within its</div>
<div> borders, and liaisons with other governments to enforce those obligations elsewhere.</div></div></blockquote><div><br></div><div>Issues of jurisdiction are actually rather more complex than that. </div></div></div></div></blockquote><blockquote type="cite">For example, some doctrine / jurisprudence recognises at leat five different types of principles used to assess applicable jurisdiction in criminal law:</blockquote><blockquote type="cite"><br></blockquote><blockquote type="cite">...</blockquote><div><br></div> Quite an informative discourse - thank you!<br><div><br></div><blockquote type="cite"><div dir="ltr"><div class="gmail_extra"><div class="gmail_quote"><div>The reason why I'm mentioning the above is not to do some sterile showing off (which I'm anyway not entitled to, as I'm not an international law scholar or practictioner and there plenty of people more knowledgeable than me on these matters) but because it strikes me that the logical passage, according to which the ability / legitimacy of a "government" to adopt and enforce laws nationally is somehow "lost" when moving to the international level or when dealing with cross-border phenomena (of which the Internet is one, but certainly not the only example - and I do think that when discussing global Internet governance matters we might well keep this in mind, to avoid "Internet exceptionalism") is based more on an aspirational approach than on the current realities of international law and relations.</div></div></div></div></blockquote><div><br></div> Agreed - I was not actually attempting to alter the current realities of international law and</div><div> relations, but suggesting that the enforcement of one country's public policies should not</div><div> _automatically_ be assumed (i.e. simply because of Internet-based communication to </div><div> those in other countries) to be applicable to the other end of the communications.</div><div> (i.e. no more so then it would be today.) </div><div><br></div><div> That is a statement that actually is not accepted by some when it comes to the Internet, </div><div> in particular those who would put obligations on entities in other countries to meet their </div><div> own policy objectives...</div><div><div dir="ltr"><div class="gmail_extra"><div class="gmail_quote"><div>
<br></div></div></div></div><blockquote type="cite"><div dir="ltr"><div class="gmail_extra"><div class="gmail_quote"><div>This does not mean, of course, that "new" forms of international norms-making or norms-enforcement would not be desirable. I am personally very interested in what appears to be a new and burgeoning field of research, dubbed "Informal Interntional Law[-making]", on which you can find more information (among other resources) at <a href="http://graduateinstitute.ch/ctei/projects/IILM.html">http://graduateinstitute.ch/ctei/projects/IILM.html</a>, as well as in one article which is available online (J. Pauwelyn, "Informal International Lawmaking: Framing the Concept and Research Questions", 2011, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1738464">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1738464</a>) and a book for which unfortunately you will have to pay :) (J. Pauwelyn, R. Wessel, J. Wouters (eds), "Informal International Lawmaking", OUP, 2012).<br></div></div></div></div></blockquote><div><br></div> Very interesting... my reading list grows.<br><div dir="ltr"><div class="gmail_extra"><div class="gmail_quote"><div>
<br></div></div></div></div><blockquote type="cite"><div dir="ltr"><div class="gmail_extra"><div class="gmail_quote"><div>However, to put it bluntly, if you (as in an "abstract you", not John specifically :) go to any "government" and tell them "your legitimacy to operate beyond your borders is null and void because of this thing called the Internet", you won't get very far. </div></div></div></div></blockquote><div><br></div><div> Not my suggestion in the least, instead use this: "You should not assume that you </div><div> may create obligations on those beyond your borders simply because your citizens </div><div> are communicating with entities in other countries via Internet."</div><br><blockquote type="cite"><div dir="ltr"><div class="gmail_extra"><div class="gmail_quote"><div class="im">Question: why should the "additional roles to play" (let us assume, for the sake of argument, that such additional roles are legitimate - you and I probably agree, but I suspect a fair number of participants to this list would not) be operationalised only *beyond* what would be incorporated into a framework of "Internet Governance"?</div></div>
</div></div></blockquote></div><div><br></div><div> As I don't know any other parties that have enforcement powers (i.e. use of force and its </div><div> derivatives regarding compliance with law), and as most governments use of such powers</div><div> is significantly constrained based on whatever existing lawful processes they have (e.g.</div><div> to be used in the enforcement of laws created by their legislative/executive mechanisms),</div><div> I don't know how those powers could be otherwise deployed as part of any multilateral</div><div> Internet Governance framework. To wit, citizens of democracies generally understand</div><div> how their national laws are binding upon them (likewise for regulations which are the</div><div> result of treaties that their government enters into) They know that contracts which they</div><div> execute are binding and have consequences with respect to enforcement. However, the</div><div> concept that some Internet Governance construct will result in enforceable constraints </div><div> may not be acceptable (unless upon implementation it moves from Internet Governance </div><div> framework into a more traditional national law or contractual basis.)</div><div><br></div><div> It is for this reason that I note that the enforcement role of governments may be a role </div><div> which must lie outside of a framework for Internet Governance, and that more traditional</div><div> mechanisms are likely to need to be employed during the implementation of any outputs.</div><div><br></div><div>FYI,</div><div>/John</div><div><br></div><div>Disclaimers: My views alone. Governments - nothing enforceable is created via this email.</div><div><br></div><div><br></div><div><br></div></body></html>