[governance] Sovereignty and the Geography of Cyberspace

Diego Rafael Canabarro diegocanabarro at gmail.com
Fri Dec 7 10:51:53 EST 2012 

Your text, Bertrand, which I accessed because of Everton Lucero's post on
facebook (thanks, Everton!) is awesome. Your e-mail reinforced a doubt I
had after reading your post: *"This is why the drafting group carefully
restricted this principle to the action of states themselves."*

I'm pretty sure that you all considered the Draft Articles on State
Responsibility for Internationally Wrongful Acts adopted by the
International Law Commission in 2001. That's exactly my concern:  how do we
deal with attribution in cases in which it is almost impossible to
determine, inter alias, the existence of elements of governmental
authority; the direction and control by a State. How to draw the line
between State and non state action?

Regards
Diego Canabarro

On Fri, Dec 7, 2012 at 10:37 AM, Bertrand de La Chapelle <
bdelachapelle at gmail.com> wrote:

> Dear all,
>
> Jovan has launched in the post below a very interesting topic that moved a
> bit out of McTim's initial call for buying a boat. Hence the separate
> thread (also shared on the IRP list).
>
> I have just posted a piece on CircleID on the topic of "Sovereignty and
> the Geography of Cyberspace<http://www.circleid.com/posts/20121204_sovereignty_and_the_geography_of_cyberspace/>"
> that touches upon some of Jovan's comments. It follows a workshop that the Internet
> & Jurisdiction Project <http://www.internetjurisdiction.net>  organized
> at the Baku IGF. I hope you'll find it interesting. Comments welcome.
>
> One point I would like to highlight is that the Council of Europe in a recommendation
> of its Council of Ministers <https://wcd.coe.int/ViewDoc.jsp?id=1835707>in September 2011, established the principle of responsibility of States
> for transboundary harm:
>
> *1.1. No harm*
>
> *1.1.1. States have the responsibility to ensure, in compliance with the
> standards recognised in international human rights law and with the
> principles of international law, that their actions do not have an adverse
> transboundary impact on access to and use of the Internet.*
>
> *1.1.2. This should include, in particular, the responsibility to ensure
> that their actions within their jurisdictions do not illegitimately
> interfere with access to content outside their territorial boundaries or
> negatively impact the transboundary flow of Internet traffic.*
>
> During very interesting workshops in Baku, including one from the Council
> of europe, this principle was explored further. Jovan rightly posits that
> if it means a responsibility to prevent any action on their territory that
> would create transboundary harm, it could be misused to justify
> surveillance and censorship.
>
> This is why the drafting group (Wolfgang, Rolf Weber, Michael Yakushev,
> Christian Singer and myself) carefully restricted this principle to the
> action of states themselves. Responsibility for transboundary harm should
> be a natural corollary of the exercise of sovereignty.
>
> Unrestrained exercise of sovereignty can lead to extraterritorial impact,
> as the rojadirecta case has shown. And this would favor the governments
> having major operators on their soil. Sovereignty can kill sovereignty.
>
> This is abroad discussion, but this notion - that emerged from a
> discussion four years ago at the first EuroDIG in Strasbourg -  may be one
> of the new principles needed for the cross-border infrastructure that the
> Internet is.
>
> Best
>
> Bertrand
>
>
> On Fri, Dec 7, 2012 at 3:37 PM, Jovan Kurbalija <jovank at diplomacy.edu>wrote:
>
>>  Well, we have innovation!  With the IGF in Bali, and ICANN on a cruise
>> ship, we may have 'beach or floating governance'. Internet governance could
>> be fun!
>>
>> I like the metaphor of the ship since it implies our common destiny. We
>> are all passengers of ICANNia or ITUnia or...*?*       Metaphors are
>> also useful to remove our tunnel vision and make us think more creatively.
>> In another metaphor, I hope that Internetistan will resist Absurdistan (here
>> is the map of this fast-growing country<http://diplo.smugmug.com/ILLUSTRATIONS/Posters-1/4464706_T4FW6r#%21i=1104113260&k=2GsD8hV&lb=1&s=A>).
>>
>>
>> But back to the current reality. Unfortunately, the ICANN cruise ship
>> won't solve the problem of internationalisation. 'Open sea' refers only to
>> freedom of navigation. It does not deal with the status of the ship. All
>> relations on the ship are regulated by the national law of the ship's flag.
>> ICANNia has to be registered somewhere. One solution could be a flag of
>> convenience such as Liberia or Panama.  What happens on the ICANNia is
>> regulated by national law, with no major differences from any other
>> land-based entity (company, organisation). Yes, ICANNia can sail in
>> whatever direction it wants to sail, but the decision must be made by the
>> captain according to the rules of the flag's state. Extrapolating from the
>> role of the captain on the ship, the ICANNia would look like military unit.
>> The cruise ship metaphor gets even more interesting  when we consider
>> different classes of cabins, rescue operations, etc.
>>
>> These thoughts have taken me back to Hugo Grotius's book *Mare Liberum*that established the "open sea" concept four centuries ago as opposed to
>> the idea of a *Mare Nostrum*. * *His relevance for our time is sobering.
>> If we replace 'sea' with 'Internet' we could have the next book on the
>> Internet. Grotius was a very interesting personality.* * Besides being
>> one of the first international lawyers, he was one of the founders of the
>> 'natural law' school of thought.  In addition, he wrote a lot about social
>> contract (before Rousseau, Locke, and others). As a matter of fact, his
>> social contract theory could be applicable to the Internet.
>>
>>  When it comes to the concept of open sea, Grotius had an interesting
>> interplay with the political masters of his era.  He believed in open sea,
>> but Dutch and British authorities quickly realised the usefulness of his
>> doctrine. They had the biggest fleets and had ambitions to develop trade
>> and colonial empires. Grotius provided them with the necessary doctrine or
>> 'political software'.  However, Grotius always argued that 'open sea' needs
>> rules and principles in order to be 'open'. Although it was
>> counter-intuitive to the leaders of two growing maritime powers, he managed
>> to convince them that it was in their best interest to 'tame' their
>> comparative powers and ensure the sustainability of their empires beyond
>> the 17th century. Everything else has written the history, which proved
>> Grotius right. We can draw many parallels, with the necessary caution that
>> historical analogies should be handled with care.
>>
>> While we are waiting for a new Grotius (or Godot), we should review how
>> we debate Internet governance issues. Grotius was a great scholar who
>> mastered the existing rules before he started changing them. We, on the
>> other hand, use well-defined and developed concepts in a relaxed way. A few
>> examples...
>>
>> As we saw, the frequently used metaphor of the open sea does not
>> translate to an open Internet. In many respects, it can lead in the
>> opposite direction (Internet Nostrum).
>>
>> Another example is the role of states' responsibility in the Internet
>> era. This is a well-defined concept in international law. If we want states
>> to be responsible for whatever is originating in their territories  (e.g.
>> cyber-attacks, botnets),  we have to give them the tools to ensure their
>> responsibility (mainly state control, regulation, and surveillance). Most
>> writings on state responsibility start from the opposite assumption, i.e.
>> the limited role of the state. With all the creativity and imagination in
>> the world, we still cannot have it both ways.
>>
>> The most topical example of the need for evidence-based policy is the
>> case of the Red Cross name/emblem at ICANN. There are very clear rules for
>> the protection of the Red Cross name/emblem that were adopted some 100
>> years ago and have been followed, without  reservation, on national and
>> international levels.  ICANN was right in protecting the Red Cross name but
>> made the mistake of putting it together with organisations that do not
>> enjoy the same status (the International Olympic Committee).
>>
>> Even if we want to change the rules in order to adjust to
>> the specificities of the Internet era (if any), we have first to master
>> them. I see here an important role for academic and civil society
>> communities. If we had advised ICANN to evaluate the Red Cross and IOC
>> submissions separately, we could have avoided a lot of policy confusion and
>> wasted time.
>>
>> The GIGANET might consider the evidence-based policy research as the key
>> theme for the next meeting?
>>
>> Regards, Jovan
>>
>>
>> On 12/6/12 3:31 PM, McTim wrote:
>>
>> All,
>>
>>  If domiciling ICANN in a nation state is problematic, perhaps ICANN
>> could buy this cruise ship as a HQ:
>>
>>  http://cruiseship.homestead.com/Cruise-Ship.html
>>
>>  It would help solve the problem of internationalisation, be a permanent
>> host for ICANN meetings (2450 berths....saving hotel costs for all) and
>> generate revenue intersessionally.  It's a 3-fer, plus it's a snip @~ 300
>> million USD!!
>>
>>
>>  --
>> Cheers,
>>
>> McTim
>> "A name indicates what we seek. An address indicates where it is. A route
>> indicates how we get there."  Jon Postel
>>
>>
>> --
>>
>> ** **
>>
>> *Jovan Kurbalija, PhD*
>>
>> Director, DiploFoundation****
>>
>> Rue de Lausanne 56 *| *1202 Geneva *|** *Switzerland****
>>
>> *Tel.* +41 (0) 22 7410435 *| **Mobile.* +41 (0) 797884226****
>>
>> *Email: *jovank at diplomacy.edu  *| **Twitter:* @jovankurbalija ****
>>
>> ** **
>>
>> ** **
>>
>> *The latest from Diplo:* today – this week – this month<http://www.diplomacy.edu/currently>
>> *l* Conference on Innovation in Diplomacy (Malta, 19-20 November 2012)<http://www.diplomacy.edu/conferences/innovation>
>> *l *new online courses <http://www.diplomacy.edu/courses>****
>>
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>
>
> --
> ____________________
> Bertrand de La Chapelle
> Internet & Jurisdiction Project Director, International Diplomatic Academy
> (www.internetjurisdiction.net)
> Member, ICANN Board of Directors
> Tel : +33 (0)6 11 88 33 32
>
> "Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint
> Exupéry
> ("there is no greater mission for humans than uniting humans")
>
>
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-- 
Diego R. Canabarro
http://lattes.cnpq.br/4980585945314597

--
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