Dr. Matthias C. Kettemann, LL.M. (Harvard), is postdoctoral fellow at the Cluster of Excellence“Normative Orders” at the University of Frankfurt (Germany) and lecturer at the Institute of International Law and International Relations of the University of Graz (Austria). Recently, he co-authored a book on Freedom of Expression and the Internet (2014). In this post, which is part of a larger research project he pursues, he presents some initial thoughts on how international law is relevant in establishing the normative order of the internet.
Lawyers like order. This is less a personal trait of lawyers than something that law students are trained in. They are made to like order and to think systematically. This is not a bad thing, as systematic thinking is usually to be applauded. However, when new areas of human sociality emerge, and ‘constitution-able’ social orders require regulation, path dependency will strike and the order of the new regime may look very much like the order of old regimes. But if the new regime exhibits novel characteristics – different stakeholder groups, transnational privatized standards-setting processes, and peculiar legitimacy narratives – then lawyers may have a problem. New thinking is required – never more so than with regard to the internet and its governance.
This systemic deficit in legal thinking has to be addressed and overcome in establishing the normative order of the internet. Such an order is necessary because, as Malcolm N. Shaw put it so well, “[i]n the long march of mankind from the cave to the computer a central role has always been played by the idea of law – that order is necessary and chaos inimical to a just and stable existence.” Of course, there is a broad variety of normative gradations between chaos and order.
Two recent developments regarding the normative order of the internet evidence diverging (yet mutually reinforcing) approaches. The Council of Europe, an intergovernmental organization, convened an expert group on the Rights of Internet Users. The group compiled a compendium, adopted by the organization’s Committee of Ministers in April 2014, that highlights what rights internet users have and what this means for governments. This is a largely traditional international law-based approach. The recommendation, to which the compendium is annexed, contains soft law but is based on hard law – human rights commitments by European states under the ECHR, for instance.
A Normative Frame for the Internet
The process leading to the April 24, 2014 NETmundial Multistakeholder Statement was different – as were the results achieved. At the meeting, almost 1500 stakeholders from different communities and almost 100 states convened. The Statement itself was based on an innovative process, which was not without faults, but managed to achieve – for the first time ever in the history of internet governance – at least rough consensus from all stakeholder groups on certain common principles.
Both the Council of Europe and NETmundial documents have one thing in common: They rely on, and explicitly and implicitly refer to, international legal norms. This is no accident. Indeed, the internet exhibits several unique features to which only a normative approach based on international law can respond. These not only include the central role of private actors in managing critical resources, the impact of technical standards, and the controlling potential of internet intermediaries and the managers of internet control points, but also the invocation of multistakeholder-based processes of normative deliberation and development.
Governing and regulating the internet is highly complex, and the global (common) interest in the integrity of the internet is extremely high. This suggests that we need to identify norms that allocate roles, rights and responsibilities between stakeholders and ensure that the global (common) interest is realized. International law is not the only normative system that can be called upon to protect common interests, but it is the only globally legitimate normative order that can explain and justify each step in the process of building and applying norms to the governance and regulation of internet with a view to ensuring its integrity.
This task is easier than it might seem. I do not suggest that a new normative order needs to be developed for regulating ‘the internet.’ Rather, my main objective is to show that such an order already exists in that there are normative developments in international law that bear upon the protection of the common interest in safeguarding the internet in light of its potential for humanity.
Commitments vs. Realpolitik
Though this task is easier than it may seem, that is not to say it will be easy. A coordinated international approach to regulating the internet and its key resources – through a treaty regulating, or an international organization governing, the internet – has not yet materialized. And that is a good thing. Traditional treaties are not able to establish a regime that is responsive to the unique challenges that governing the internet in the global common interest implies. We need to think deep and hard. We need to consider what norms already apply to the internet and its protection and how to conceptualize legitimate normative processes in international constellations, including all stakeholders, before we can take the next normative step.
The challenges of normatively framing the development of the internet are substantial. Yet we must not overlook that there is international agreement on the finality of ICTs as contributing towards an information society with human beings at its center, a society that is development-oriented, based on human rights, the rule of law and – more generally – international law and its principles. These commitments are endangered by more recent developments, including pervasive state surveillance via the internet, suggestions by states to create national internet segments, and state practice which is insensitive to the very commitments made during the WSIS process. It is this dialectic between unfulfilled commitments and realpolitik that must make us work harder on developing principles and establishing a normative frame for the internet.
It is Time
Thirty years after the standardization of the internet protocol suites, more than twenty years after the invention of the hypertext system which enabled the birth of the internet we know today and the launch of the World Wide Web, and, finally, some ten years after the WSIS process and its final documents, the time has come to review which international legal rules have evolved to shape international and national responses to the challenges of regulating and governing the internet.
Just as international law’s civilizing role in the 20th century lay in the largely successful harnessing of the use of force in international relations, so its key role in the early years of the 21st century may well be its influence on the evolution and use of the internet, given ICTs’ impact on societies.
This is what motivates me in my research project on the normative order of the internet.