[governance] Fw: [IP] DL- One Man's Freedom is Another Man's Imperialism (via Evgeny Morosov)

Matthias C. Kettemann matthias.kettemann at gmail.com
Thu Jan 8 03:09:49 EST 2015


The International Court of Justice (ICJ), unlike the International Criminal
Court (ICC), cannot indict persons. It is a court of last resort in which
disputes between states are settled. The Court can also be asked to provide
advisory opinions. States need to submit to its jurisdiction, either ex
ante for all cases, or for a specific case. It seems unlikely that North
Korea would agree to any proceedings.

Suggestions for 'digital benches' at the ICJ are premature. As has been
correctly pointed out, the ICJ applies international law - treaties,
custom, principles - and does not create new law. International law
regarding the Internet is still crystallizing. The Tallinn Manual (Process)
<https://ccdcoe.org/tallinn-manual.html> and the Articles on State
Responsibility can help us determine whether acts of private actors can be
attributed to states. If you are interested in theses issues, do read this
interesting comment
<http://www.asil.org/insights/volume/19/issue/1/cyber-operations-private-actors-ukraine-russia-conflict-cyber-war-cyber>
by Gertjan Boulet on the attributability of cyber attacks in the Ukraine
conflict.

International criminal law is another matter entirely. Individuals,
including heads of states and government, can be (and have been) indicted
<http://www.theguardian.com/commentisfree/2013/apr/07/north-korea-case-to-the-hague>
by the ICC for certain serious crimes. Alternatively, the Security Council
could refer a situation to the ICC.

Cheers
Matthias


On Wed, Jan 7, 2015 at 9:18 PM, Barry Shein <bzs at world.std.com> wrote:

>
> On January 7, 2015 at 12:13 parminder at itforchange.net (parminder) wrote:
>  >
>  > On Wednesday 07 January 2015 12:32 AM, Barry Shein wrote:
>  > > I don't think you have an "exceptionally poor IQ" :-)
>  > >
>  > > But there is a whiff of moral nihilism inherent in this.
>  >
>  > Not at all. That is one one thing you can hardly ever accuse me of :)
>  > >
>  > > That said the problem we continue to run up against is no effective
>  > > international dispute resolution process.
>  > What about the International Court of Justice. In my view, with the
>
> Has the ICJ ever gotten around to indicting anyone over the 9/11
> attacks? Did they indict Osama bin Laden or others named (KSM, et al)?
>
> To my knowledge, no. I suppose the effect on the World Trade Center in
> NYC (etc) and boasting by OBL (et al) did not constitute sufficient
> evidence to indict.
>
> Or that's not what they do, my misunderstanding.
>
> What do they do, exactly? Reading over their decisions they seem more
> useful in cases where the two sides in dispute are likely to accept
> their jurisdiction. Is North Korea (DPRK) likely to accept their
> jurisdiction?
>
>    http://www.icj-cij.org/docket/index.php?p1=3&p2=2
>
>  > digital encompassing a largely boundary-less world, there should be a
>  > separate digital bench of the ICJ. (Some organisations have suggested
>  > this as a part of the new institutional landscape that we need for
>  > global IG). But for that we need to develop international law bec ICJ
>  > applies international law - for which we need venues to legitimately
>  > develop international law..... Which is something many of us have been
>  > struggling for a long time, including in this space.
>  >
>  > >   Even if we were to assume
>  > > the worst the DPRK is accused of were true, or Iran for that matter
>  > > (much of which is quite believable if for no other reason than they
>  > > boast about it) what is the resolution process? Beyond a group of
>  > > probably reasonable people agreeing to issue a statement sympathizing
>  > > with one side or another?
>  >
>  > The above is a clear plan of action, not just a vacant statement of
>  > outrage and sympathy. (and my proof against allegation of moral nihilism
>  > :) ) My view is that civil society should be working on such plans, to
>  > promote global public interest. But a lot of them seem to have other
>  > plans, for instance, joining up with big business like at the WEF to
>  > block development of international law and norms in this area...
>  >
>  > parminder
>
> That said, perhaps the ICJ would be useful in the internet sphere.
>
> --
>         -Barry Shein
>
> The World              | bzs at TheWorld.com           |
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-- 

Dr. Matthias C. Kettemann, LL.M. (Harvard)
Post-Doc Fellow | Cluster of Excellence „
<http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>Normative
Orders
<http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>”
<http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>,
University of Frankfurt am Main
Lecturer | Institute of International Law andInternational Relations
<http://voelkerrecht.uni-graz.at/en/>, University of Graz
<http://trainingszentrum-menschenrechte.uni-graz.at/en/infos-fuer-studierende/>

Goethe-Universität Frankfurt am Main
Exzellenzcluster „Normative Ordnungen“
Max-Horkheimer-Straße 2
60629 Frankfurt am Main / Germany

E | matthias.kettemann at gmail.com
Blog <http://internationallawandtheinternet.blogspot.com/> | SSRN
<http://ssrn.com/author=1957909> | Google Scholar
<http://scholar.google.ch/citations?user=8jRGt2QAAAAJ> | Twitter
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Recent publications:
The Common Interest in International Law (2014, co-editor)
<http://www.intersentia.co.uk/searchDetail.aspx?bookId=103066&authors=Wolfgang>
European Yearbook on Human Rights 2014 (2014, co-editor)
<http://www.nwv.at/recht/verfassungsrecht/1077_european_yearbook_on_human_rights_2014/>
Freedom of Expression and the Internet (2014, co-author)
<https://book.coe.int/eur/en/human-rights-and-democracy/5810-freedom-of-expression-and-the-internet.html>
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