[governance] Internetistan, or the Bit Boat... a new approach to Internet governance!

[Jovan Kurbalija]

Dear Nick,

I agree that metaphors could help us to move beyond fixed 'cognitive molds'.
Here are a few comments on the open sea analogy …..

Although open sea is not owned by anyone, there are very elaborate rules
regulating open sea codified in the UNCLOS  (UN Convention on the Law of
the Sea). If the Internet's open data flow is regulated like the open sea,
there will be a need for UNCLOI (UN Convention on the Law of the Internet)
or something similar (an Internet framework convention?).


Apart from inevitable controversies about formalities (e.g. adoption of the
convention), the main challenge is the analogy itself: an analogy to
*what*on the open sea?



The closest is the analogy to *containers* that - like data packages -
travel between two points using the optimal technical and economical route
– a mix of ships, trains, train-tracks with ports serving as routers in
this metaphor.  In this analogy, one has to be aware of high securitisation
of the container traffic after 9/11 (e.g. risk of smuggling nuclear and
chemical weapons in containers). Here, we have also an analogy with DPI on
the Internet.


If we stretch our imagination further, we may use an analogy with *fish*.
As Kusturica artistically said in  his movie *Arizona
Dream*<http://voices.yahoo.com/films-whimsical-peculiar-odd-individual-emir-8505435.html?cat=40>:
'The fish doesn't understand anything ......he's just floating through it.'
Sounds like Internet packages! Fish do not care about borders, although
they tend to make quite predictable moves. With sharks and minnows, though,
'net neutrality' wouldn't be observed.

If we dive deep enough, we reach *the seabed*, and another possible analogy
with the Internet.  Here we encounter the concept of the common heritage of
mankind regulating the exploitation of the seabed for the benefit of
mankind as a whole. The common heritage status of the seabed was one of the
most controversial parts of the Law of the Sea negotiations, negotiations
which took more than 10 years to conclude. Common heritage introduced
redistribution of the wealth of the seabed to the whole of mankind.
Countries with  seabed mining technology opposed the common heritage
concept. It was one of the reasons why the United States has not ratified
the UNCLOS to this day.


As you said, Nick, it is very likely that it will be ratified soon by
Congress due to developments in the Arctic. Russia, Norway, and Denmark
(via Greenland) have the strongest claim to the Lomonosov Ridge (the
richest part of the Arctic). Paradoxically, as it often happens in
politics, the UNCLOS seabed regulation can provide the USA and non-Artic
countries with access to the wealth under the Arctic (if interested, click
here for more on Arctic seabed
politics<http://www.economist.com/node/21556797>).
The seabed regime is very well developed with regulations and an
administrative body (the International Seabed Authority based in Jamaica).
The analogy of the  seabed/Internet could extend the concept of common
heritage to open data and Internet content and could trigger a lot of
controversy, just as UNCLOS did 30 years ago.

While we are at it, we should also mention the concept of *archipelago
seas*which are an interesting middle way between open sea and
territorial sea.
It would be a most appropriate topic for discussion at the IGF-Bali.

It was a long swim for Sunday ….

Regards, Jovan

On Sat, Dec 8, 2012 at 12:27 PM, Nick Ashton-Hart <nashton at ccianet.org>wrote:

> Funny, I have been thinking of the Law of the Sea for a few weeks as an
> interesting construct for the legal protection of the open flow of data.
>
> It is true that there's a built environment to the Internet - but in
> maritime law ships are also physical and registered with a state. However,
> the space they travel through, beyond the territorial waters limit, is open
> sea and by definition not owned by anyone.
>
> If we used this construct to protect the flow of international data, that
> might be a workable metaphor. The Law of the Sea embodied in UNCLOS is,
> after all, largely simply a distillation of internationally-understood
> principles about maritime law that go back to the Roman period.
>
> We could do much worse than an international understanding that data, when
> transiting any country between a source and destination in third countries,
> was legally not actually 'in' the territory or subject to the laws of the
> state it was transiting, but subject only to an international regime.
>
> (Bertrand: these ideas are what I was speaking of when I told you at Baku
> I had an idea for your jurisdiction project that might have potential).
>
> FWIW: For those who are about to remind me, I am aware that the USG has
> yet to ratify UNCLOS. It is clear that the current Administration is very
> much in favour of doing so, however, as are many members of the legislative
> branch).
> --
> Regards,
>
> Nick Ashton-Hart
> Geneva Representative
> Computer & Communications Industry Assocation (CCIA)
> Tel: +41 (22) 534 99 45
> Fax: : +41 (22) 594-85-44
> Mobile: +41 79 595 5468
> USA DID: +1 (202) 640-5430
>
> *Need to meet with me? Schedule the time that suits us both here:
> http://meetme.so/nashton*
>
> Sent from my one of my handheld thingies, please excuse linguistic
> mangling.
>
> On 7 Dec 2012, at 16:23, "Dr. Alejandro Pisanty Baruch" <apisan at unam.mx>
> wrote:
>
>  Jovan,
>
>  thanks for doing a pretty innovative thing here: discussing ideas.
> Further, bringing a fresh approach and actual expertise.
>
>  My long-standing concern for analogies between Internet governance and
> the laws of the sea is that the Internet is much more a built environment
> than the sea (not that the sea is all natural and in fixed form forever,
> immune to our contamination and our imagintion.)
>
>  So Internet governance refers not only to rules etc. to live on the
> existing Internet, but also has to be useful as guidance in its expansion
> and development. To abuse your analogy, it's not only about shipping,
> fishing, and mining, but also about how to actually make the oceans of
> tomorrow.
>
>  That brings you to points like: you can use Ostromian theory to
> understand the tragedy of the commons in fisheries; but can you extend it
> to Internet governance? What are the limitations? Can you address concerns
> from liberals to socialists in a new framework without actually changing
> the salinity or wanting to reverse the flow of the Humboldt current?
>
>  Any thoughts?
>
>  Yours,
>
>  Alejandro Pisanty
>
>
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>   ------------------------------
> *Desde:* governance-request at lists.igcaucus.org [
> governance-request at lists.igcaucus.org] en nombre de Jovan Kurbalija [
> jovank at diplomacy.edu]
> *Enviado el:* viernes, 07 de diciembre de 2012 08:37
> *Hasta:* governance at lists.igcaucus.org; McTim
> *Asunto:* Re: [governance] Internetistan, or the Bit Boat... a new
> approach to Internet governance!
>
>  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
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> *Email: *jovank at diplomacy.edu  *| **Twitter:* @jovankurbalija
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>
>
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