AW: [governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal

["Kleinwächter, Wolfgang"]

Hi


probably we should recognize the differences between "lex lata" (the current law) and "lex ferranda" (future or "wanted" law)). For the Internet we got recently two important commitments by governments of UN member states: The UN Human Rights Council (HRC) made clear that individuals have the same human rights online and offline. And the Group of Governmental Experts (GGE), which operates under the 1st Committeee of the United Nations General Assembly (UNGA), made clear that governments have the same duties and responsibilities under international law online and offline. This is the current law. Before we start new intergovernmental codification processes we should analyse very careful what can we do with the existing international legal instruments if it comes to Internet related public policy issues.  

The general problem with international law is that there is no universal and general dispute resolution mechanism, similar to the court system within a national context. The international legal system is based on the seven jus cogens principles, enshrined in the UN Charter, which includes the principle of sovereign equality and non-interference into internal affairs of other countries. National sovereignty and non-interference are two legal principles which allow governments to stop what they do not like. International treaties are binding only for countries which have ratified it. Take the Budapest Cybercrime Convention: It is binding only for its member states (50+) although all 193 UN member states recognize that cybercrime is a global issue where something has to be done. In a "lex ferrande" for a borderless cyberspace we could work towards a principle of "shared sovereignty". But this is a long way to go.    

There is always space for improvement and enhancement. And "lex ferranda" is certainly an option. My argument in the "multilateral vs. multistakeholder" debate was and is always that in the 21st century the multilateral treaty system, which constitute "lex lata", does not disappear but is now embedded into a broader multistakeholder environment where we have not only "more players" and "more layers" but also a combination of different types of norms: hard law, soft law, ethical and moral norms (very different from culture to culture), technical codes etc. 

There is another issues related to stability vs. flexibility. If you overregulate a space you make it (probably) legal stable, but you reduce the flexibility to adjust to innovations and new developments. Insofar, in a dynamic environment legally non-binding "frameworks" - as the NetMundial Declaration of Principle - are helpful instruments, inter alia for naming and shaming for wrongdoers in cyberspace. 

And if it comes to dispute settlement: To move towards an "International Internet Court" is probably wishful thinking. But one can take existing mechanisms - WTO, WIPO, ADRs, UDRPS, URSs - as a source of inspiration to find mechanisms on a case by case basis. 

Wolfgang



On Sat, 13 Jun 2015, parminder wrote:

> jurisdiction. I however still believe that international law is both the best and
> the more plausible option - even if there is a considerable amount of
> evolutionary, and innovative, work to be done for this purpose. )
>

Here is a thing that I worry that non-lawyers don't appreciate as 
viscerally as those of us in the trade do: uncertainty is expensive, and 
is itself a great bar to effective rights protection. In a new system, we 
invite the bad actors to take advantage, and the victims will find it 
harder to vindicate their rights because so much will have to be argued 
from scratch. (Which is expensive and unsure.  Which will itself deter the 
bringing of those cases.)  And that doesn't even take account of the 
inevitable lacunae.  It's just so much better not to have to re-invent the 
wheel, the axle, the support strut, the engine, the carburetor, the 
suspension, the muffler, the drive train, the catalytic converter, and so 
on and so on.  And yet that is what it would take.

Perhaps your solution might, in 30 years, be better.  But in the short, 
medium, and near-long run, I just can't see it: a national system has 
drawn many bright lines, and that clarity itself deters a lot of bad 
things from even happening.

-- 
A. Michael Froomkin, http://law.tm
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
                         -->It's warm here.<--



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