<div dir="ltr">(And here I hit my two-messages-per-day limit, but John raises some very interesting points)<br><div class="gmail_extra"><br><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:<br>
<blockquote class="gmail_quote" style="margin:0pt 0pt 0pt 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div style="word-wrap:break-word"><div><div class="im"><div>On Apr 17, 2013, at 8:17 AM, Andrea Glorioso <<a href="mailto:andrea@digitalpolicy.it" target="_blank">andrea@digitalpolicy.it</a>> wrote:</div>
<br></div><blockquote type="cite"><div dir="ltr"><div><div class="im">Dear John, dear all,<br><br>an observation and a question, in-line below.<br></div>...</div><div class="im"><div><div class="gmail_extra"><div class="gmail_quote">
<div>The observation: often, in order to "fulfil their public policy obligations" (I think it would be better to simply say "their obligations") government *must* take actions that go beyond their borders. One can agree or disagree with the substance of e.g. ACTA and/or with the process through which it was negotiated (I won't take a position on either of the two elements) but it can be argued that "governments" decided to engage in such negotiations because they believed that the protection of the economic interests of national constituencies, relying on various forms of intellectual property protection, could be achieved only via an action which went beyond the national borders - i.e. an international agreement.<br>
</div></div></div></div></div></div></blockquote><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. For example, some doctrine / jurisprudence recognises at leat five different types of principles used to assess applicable jurisdiction in criminal law:<br>
<br>a) Territorial principle: Penal legislation usually provides that it applies to conducts in the territory of the State, regardless of the nationality of the author of the conduct.<br>b) Subjective and objective territorial principles: When only a part of the conduct occurs in the territory while the rest of the conduct occurs abroad, this part of the conduct or a constituent element of the offence in the territory may be a basis on which a State can exercise jurisdiction.<br>
c) Protective principle: States also ensure that they are able to prosecute certain crimes that affect their important interests even when they are committed entirely abroad.<br>d) Nationality principle: States may extend jurisdiction to crimes abroad committed by their own nationals.<br>
e) Passive nationality principle: States may also extend jurisdiction to crimes abroad when the victims of these crimes are their nationals.<br><br></div><div>(see Mika Hayashi, "Objective Territorial Principle or Effects Doctrine? Jurisdiction and Cyberspace", No. 6, pp. 284-302, 2006, available at <a href="http://www.morlacchilibri.com/inlaw/downloads/in.law_08_2.pdf">http://www.morlacchilibri.com/inlaw/downloads/in.law_08_2.pdf</a>) <br>
<br></div><div>Other forms of "extensive jurisdiction" can be found in other branches of law, including European competition law or in the new European privacy / data protection law(s) (currently under negotiations within the European Parliament and the Council). <br>
<br>Sitting where I sit, I'm also forced to note that European Union law is <i>de facto</i> designed to operate "beyond national borders" (it always struck me that there are probably more things in common between European Union governance, including its legal framework, and Internet governance, than many people would realise - but this is, yet again, stuff for another conversation).<br>
<br></div><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.<br>
<br>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>
<br></div><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. Then the question is whether the purpose of such an engagement is to actually change the way in which "governments" operate or simply to make noise.<br>
</div><blockquote class="gmail_quote" style="margin:0pt 0pt 0pt 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div style="word-wrap:break-word"><div><div class="im"><blockquote type="cite"><div dir="ltr">
<div><div class="gmail_extra"><div class="gmail_quote"><div>
</div></div></div></div></div></blockquote><blockquote type="cite"><div dir="ltr"><div><div class="gmail_extra"><div class="gmail_quote"><blockquote class="gmail_quote" style="margin:0pt 0pt 0pt 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">
<div style="word-wrap:break-word"><div></div><div></div><div>I have stated previously that the Internet community has not provided a clear</div>
<div>framework for government engagement in "Internet Governance" in the larger </div><div>context, that being both the management of common global infrastructure unique</div><div>to the Internet as well as the processes by which governments should engage</div>
<div>to accomplish their public policy objectives. I will observe that the absence of </div><div>a clear model for governmental engagement is actually unfortunate in two aspects:</div><div>first, as governments awaken to the need for engagement with respect to the</div>
<div>Internet, the lack of an Internet community model for accomplishing their public </div><div>policy goals leads governments to look to older organizations which may not be </div><div>well-suited to the task; and secondly (and perhaps not quite as obvious) is that </div>
<div>a clear model for how governments engage to accomplish their Internet public </div><div>policy obligations might serve as a roadmap for how the USG evolves from </div><div>its present unique circumstances in these matters.</div>
</div></blockquote></div></div></div></div></blockquote></div></div><div>I believe that "government" must have the ability to participate as any other </div><div>stakeholder, but additionally, it's unique ability with respect to the use of force</div>
<div>(and generalized into enforcement of laws) means that it may have additional</div><div>roles to play when it comes to enforcement of norms/principles/standards/etc</div><div>beyond that which we may incorporate into any framework of "Internet Governance".<br>
</div></div></blockquote><div class="im"><div><br></div></div></div>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"?<br>
</div><div class="gmail_extra"><br></div><div class="gmail_extra">Thanks for the interesting conversation.<br><br>Ciao,<br><br>Andrea<br><br>--<br>I speak only for myself. Sometimes I do not even agree with myself. Keep it in mind.<br>
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