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

Matthias C. Kettemann matthias.kettemann at uni-graz.at
Tue Dec 11 13:38:00 EST 2012


Cher Bertrand, dear all,

I'd even go one step further. In a article published in the Heidelberg 
Journal of International Law, I argued that the example of Egypt is not 
only reflective of an emerging international principle but even 
indicative of the crystallization of the application of the 
international customary law norm of non-interference to other states' 
Internet access. Indeed, the stability and functionality of the Intenret 
can by now be clearly considered to lie in the common interest. As such, 
it is protected by international law. States that violate this common 
obligation engage their international responsibility.

(I'm happy to share the article on an individual basis if you're 
interested (but it's in German): /K//ettemann/, Das Internet als 
internationales Schutzgut: Entwicklungsperspek­tiven des 
Internetvölkerrechts anlässlich des Arabischen Frühlings [The Internet 
als a Global Object of Protection: Perspectives on International 
Internet Law in Light of the Arab Spring],ZaöRV/Heidelberg Journal of 
Int'l Law 72 (2012), 469-482)

Kind regards
Matthias


Am 11.12.2012 18:11, schrieb Bertrand de La Chapelle:
> Dear Nick,
>
> Just a brief comment on the issue of "transit traffic". This is an 
> interesting component to explore. As I have often said, I believe that 
> Egypt acted in reference to an implicit emerging international 
> principle of "*non-tampering with transit traffic*" when it blocked 
> access to the Internet during the Arab Spring but did not impact the 
> transit traffic serving the easter coast of Africa.
>
> Discussing this in more detail would indeed be useful and could 
> probably be part of an international/global regime.
>
> Best
>
> Bertrand
>
>
>
> On Sat, Dec 8, 2012 at 12:27 PM, Nick Ashton-Hart <nashton at ccianet.org 
> <mailto: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 <tel:%2B41%20%2822%29%20534%2099%2045>
>     Fax: : +41 (22) 594-85-44 <tel:%2B41%20%2822%29%20594-85-44>
>     Mobile: +41 79 595 5468 <tel:%2B41%2079%20595%205468>
>     USA DID: +1 (202) 640-5430 <tel:%2B1%20%28202%29%20640-5430>
>
>     *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 <mailto: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
>>
>>     ! !! !!! !!!!
>>     NEW PHONE NUMBER - NUEVO NÚMERO DE TELÉFONO
>>
>>     +52-1-5541444475 <tel:%2B52-1-5541444475> FROM ABROAD
>>
>>     +525541444475 <tel:%2B525541444475> DESDE MÉXICO
>>
>>     SMS +525541444475 <tel:%2B525541444475>
>>          Dr. Alejandro Pisanty
>>     UNAM, Av. Universidad 3000, 04510 Mexico DF Mexico
>>
>>     Blog: http://pisanty.blogspot.com
>>     LinkedIn: http://www.linkedin.com/in/pisanty
>>     Unete al grupo UNAM en LinkedIn,
>>     http://www.linkedin.com/e/gis/22285/4A106C0C8614
>>     Twitter: http://twitter.com/apisanty
>>     ---->> Unete a ISOC Mexico, http://www.isoc.org
>>     .  .  .  .  .  .  .  .  .  .  . .  .  .  .  .
>>
>>     ------------------------------------------------------------------------
>>     *Desde:* governance-request at lists.igcaucus.org
>>     <mailto:governance-request at lists.igcaucus.org>
>>     [governance-request at lists.igcaucus.org
>>     <mailto:governance-request at lists.igcaucus.org>] en nombre de
>>     Jovan Kurbalija [jovank at diplomacy.edu <mailto:jovank at diplomacy.edu>]
>>     *Enviado el:* viernes, 07 de diciembre de 2012 08:37
>>     *Hasta:* governance at lists.igcaucus.org
>>     <mailto: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
>>
>>     *Tel.*+41 (0) 22 7410435 <tel:%2B41%20%280%29%2022%207410435> *|
>>     **Mobile.*+41 (0) 797884226 <tel:%2B41%20%280%29%20797884226>
>>
>>     *Email: *jovank at diplomacy.edu <mailto: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 
> <http://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")
>

-- 

Univ.-Ass. Mag. Dr. Matthias C. Kettemann, LL.M. (Harvard)

Institut für Völkerrecht und Internationale Beziehungen
Karl-Franzens-Universität Graz

Universitätsstraße 15/A4, 8010 Graz, Österreich

T | +43 316 380 6711 (Büro)
M | +43 676 701 7175 (mobil)
F | +43 316 380 9455
E | matthias.kettemann at uni-graz.at
Blog | internationallawandtheinternet.blogspot.com


--

Dr. Matthias C. Kettemann, LL.M. (Harvard)

Institute of International Law and International Relations
University of Graz

Universitätsstraße 15/A4, 8010 Graz, Austria

T | +43 316 380 6711 (office)
M | +43 676 701 7175 (mobile)
F | +43 316 380 9455
E | matthias.kettemann at uni-graz.at
Blog | internationallawandtheinternet.blogspot.com

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