[governance] Sovereignty and the Geography of Cyberspace

[Diego Rafael Canabarro]

Bertrand, thank you for your clarifications. Hopefully, responsible
statists will follow that lead.

Good points, Alejandro.
That was exactly the scope of my question. Several precedents dealt with by
international courts deal with the difficulties of attributions in cases of
piracy, genocide and crimes against humanity, etc. The wars in the former
Yugoslavia are full of examples of groups displaying elements of government
authority in their criminal/unlawful actions. It seems to me that in
"cyberstuff" it might be even easier to create fog around responsibility.
And what has been produced within the scope of NATO seems to reinforce
traditional definitions such as the applicability of article 51 of the UN
Charter for assessing legality/illegality of self-defense in case of
transboundary harm caused "by one State to another State."

Regards
Diego

On Fri, Dec 7, 2012 at 12:19 PM, Dr. Alejandro Pisanty Baruch <
apisan at unam.mx> wrote:

>  Bertrand,
>
>  would national law be enough to prevent country A's government from
> looking the other way when people under its jurisdiction attacks assets in
> country B?
>
>  What if they mask them by obfuscation or spoof them to appear as being
> based in country(ies) C, D, etc.?
>
>  Plenty of literature already on all this. What in your view is the way
> this will evolve?
>
>  Yours,
>
>  Alejandro Pisanty
>
>
>
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>   ------------------------------
> *Desde:* governance-request at lists.igcaucus.org [
> governance-request at lists.igcaucus.org] en nombre de Bertrand de La
> Chapelle [bdelachapelle at gmail.com]
> *Enviado el:* viernes, 07 de diciembre de 2012 10:44
> *Hasta:* Diego Rafael Canabarro
> *CC:* governance at lists.igcaucus.org; Jovan Kurbalija; irp; McTim
> *Asunto:* Re: [governance] Sovereignty and the Geography of Cyberspace
>
>  Dear Diego,
>
>  You wrote:
> *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?*
>
>  You are right, this is a difficult issue. But some situations can
> probably be handled more easily than others and we could focus on these.
>
>  The first instance of application of this principle would, I believe, be
> in the course of the *development of new national legislations*. For the
> moment, nothing requires to take into account potential impact outside of
> the frontiers. One could envisage the obligation of an impact study, a call
> for public comments, etc...
>
>  As a matter of fact, during the workshop we organized in Baku on the
> Geography of Cyberspace, Marietje Schaake, from the European Parliament,
> remarked that this is what happens in her work: she receives comments from
> people outside of europe on draft legislation in the EP. She said that
> parliamentarians now have global constituents. Likewise, she and other
> european parliamentarians wrote to the US congress regarding the SOPA/PIPA
> debate. And the international campaign against these draft legislations was
> an illustration of a grassroots input in a national process because of its
> potential transboundary impact.
>
>  Actually, the recommendation of the Council of Europe explicitly says :
>
>  *1.2. Co-operation*
>
> *States should co-operate in good faith with each other and with relevant
> stakeholders at all stages of development and implementation of
> Internet-related public policies to avoid any adverse transboundary impact
> on access to and use of the Internet. (emphasis added)*
>
>
>  A second aspect is related to *individual decisions*. The rojadirecta
> case is an illustration. In such situations, there are two possible
> avenues: one is the application of the notion of "comity" advocated by
> Thomas Schultz, that would require courts in one country to take into
> account to a certain extent the laws of the other jurisdiction involved;
> another one would be the creation of specific processes to detect/document
> such situations and instances for dealing with them. This is a long shot,
> but maybe not unrealistic.
>
>  In particular, specific regimes could be developed covering states
> actions towards respectively: the DNS layer operators (registries,
> registrars, RIRs, etc...) and the major platforms related to the
> applications (and content) layer. This can be part of due process
> requirements.
>
>  Finally, the IGF workshop also introduced a *distinction between
> voluntary and involuntary transborder impact*. There are cases where the
> intention is clearly to extend the sovereign powers on other territories.
> But there are also cases of unintended consequences, such as when the
> filtering of content in India applied downstream to Omanis because of the
> peering arrangements between operators. Such cases may be easier to handle,
> provided there are cooperation mechanisms in place.
>
>  Best
>
>  Bertrand
>
>
> On Fri, Dec 7, 2012 at 4:51 PM, Diego Rafael Canabarro <
> diegocanabarro at gmail.com> wrote:
>
>> 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
>>
>> --
>> diego.canabarro [at] ufrgs.br
>> diego [at] pubpol.umass.edu
>> MSN: diegocanabarro [at] gmail.com
>> Skype: diegocanabarro
>> Cell # +55-51-9244-3425 (Brasil) / +1-413-362-0133 (USA)
>> --
>>
>>
>
>
>  --
> ____________________
> 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")
>
>


-- 
Diego R. Canabarro
http://lattes.cnpq.br/4980585945314597

--
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