Respective Roles: Towards an International Treaty for Internet Freedom?

IPO Affiliate Christian Moeller describes how and in what way stakeholders at the IGF could seek to build structures to adopt more binding legal resolutions on internet governance principles.

 

While the idea to have a “Magna Carta” for the Internet, protecting online freedoms such as freedom of expression, online assembly, or privacy, isn’t new, the question remains on how the UN Internet Governance Forum (IGF) could adopt binding documents – and whether it should at all. This article offers food for thought on how all IGF stakeholders could collaborate in an attempt to develop an international legal framework without expanding the scope of the mandate of the IGF. Instead, this nascent idea makes use of existing structures involving a range of stakeholders, including the Dynamic Coalitions, the Freedom Online Coalition and the Council of Europe.

Internet Governance & International Treaties

At the Opening Session of the last IGF Meeting in November 2015 in Joao Pessao, UN Special Rapporteur on freedom of expression David Kaye argued for an international treaty on human rights on the Internet. He said he saw a lack of legal certainty -substantive, jurisdictional, and procedural- that allows many around the world to perceive gaps in the application of human rights law online. He stressed that Article 19 of the Universal Declaration of Human Rights (UDHR) guarantees the right to freedom of expression regardless of frontiers as a transboundary right. Kaye stated, “It is a challenge to traditional notions of Government control of territorial space, but it is a provision to be celebrated and put at the very center of Internet Governance.”

Joe Cannataci, UN Special Rapporteur on the right to privacy, said that there was a need to improve existing legal instruments: “In international law, justiceable agreements are those that are included in conventions, legally binding international treaties. Thus, if Internet Governance is to be obtained, it must be treaty based.”

“Ultimately, nothing can substitute international agreement between governments acting on the advice and in the spirit of multistakeholder agreements”, Cannataci added.

Other participants, however, especially among civil society, voiced reservations that an international treaty would endanger a free Internet rather than provide for its protection, especially if such a treaty is ratified by governments that engage in mass surveillance, implement overreaching copyright laws, have poor privacy protection, limit access to an open Internet, or violate other human rights in their jurisdiction.

The multi-stakeholder model of internet governance at “worst may be a front for corporate self-regulation or government policy whitewashing”, warns for example Jeremy Malcolm of the Electronic Frontier Foundation.

And indeed, countries such as China or Russia and many from the Middle East are openly in favor for more government control in Internet governance, lobbying for multilateral or intergovernmental arrangements, where states are the primary actors, administered by the ITU. In a Joint Communiqué dating from April 2016, the Foreign Ministers of the Russian Federation, the Republic of India and the People’s Republic of China emphasized “the need to internationalize Internet governance and to enhance in this regard the role of International Telecommunication Union”.

So, with these debates as a backdrop, how could a human rights-centered and multi stakeholder-based international treaty on basic human rights on the Internet be formed and what would it look like? A scenario:

Multi-stakeholderism and International Treaties

The IGF, according to the somewhat clunky definition of the Working Group on Internet Governance (WGIG), “brings together governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet“.

The WGIG definition explicitly acknowledges that each group will have different interests, roles, and participation, which in some cases will overlap. While the roles of civil society, private sector, academia, and the technical community vary and are not necessarily democratically legitimized by a constituency of any form, an important function of governments is the adoption of legal instruments and the protection of their citizens and their basic rights. Legislators are (ideally) democratically legitimized, bound by human rights and incorporated in a system of checks and balances.

Each step of governance should be implemented by a body directly empowered to execute it, or linked to external institutions that have the authority to do so, suggests Jeremy Malcolm (2015). This is where in this scenario IGF Dynamic Coalitions, the Council of Europe as an international governmental organization and the member states of the Freedom Online Coalition come into play and might apply their ‘respective roles’.

Dynamic Coalitions

In fact, many principles on how to apply traditional human rights to the Internet and how to establish new human rights standards with regard to new technologies have already been developed during the first ten years of the IGF, largely  by civil society and the so-called Dynamic Coalitions (DC). “Dynamic Coalitions”, in the world of the IGF, are informal, issue-specific groups. DCs necessarily need to comprise members from various stakeholder communities – civil society, governments, industry and academia – in order to be endorsed by the IGF Secretariat.

Dynamic Coalitions are inclusive and open to all stakeholder groups. DCs have been established already at the inaugural IGF in Athens and are the workhorses when it comes to shaping the IGF Annual Meetings’ agenda, bringing together stakeholder groups, identifying challenges and drafting recommendations. Due to their structure, DCs often combine technical knowledge, geographical and institutional inclusiveness, and academic scrutiny in their work.

Inter alia, the Dynamic Coalition on Freedom of Expression and Freedom of the Media Online (FOEonline) or the Dynamic Coalition on Internet Rights and Principles (IRP) in the past 10 years since the inaugural IGF meeting in Athens, drafted a number of documents, including the Charter of Human Rights and Principles for the Internet. Also the outcomes of the NetMundial meeting in Brazil in April 2014 and the (non-binding) Internet Governance Roadmap could serve as multi-stakeholder input to a possible binding instrument.

None of these recommendations, however, has been translated into binding documents, yet. And they shouldn’t, as they would lack democratic legitimization and legislative backing. In order to institutionalize human rights protection on the Internet a democratic, governmental and legislative structure is needed. For example, the Council of Europe.

Council of Europe

The Council of Europe (CoE) is an international governmental organization consisting of 47 member states. It is home to the European Court of Human Rights (ECtHR) in Strasbourg, France, established in 1959 by the European Convention on Human Rights. The Council was founded in 1949 with the goal to promote human rights, democracy, and the rule of law. It has no connection with the European Union (EU). A particular feature is that the Councils’s international treaties are open to non-member states.

Thus, the Council of Europe demonstrates an inclusive approach towards international treaties: conventions and protocols that are adopted by the Committee of Ministers and open for ratification by member states and beyond. Examples from the Internet sphere include the Cybercrime Convention of 2001 and its supplement, and the “Additional Protocol on Xenophobia and Racism committed through computer systems” of 2003.

As of now, the Cybercrime Convention has been ratified by 54 states, including nine non-members[1]  – among them the U.S. The Additional Protocol on Xenophobia and Racism has been ratified by 21 states and signed by another 17 (among them non-members Canada and South Africa)[2].

The convention was deliberately broken up into two separate documents to allow the U.S. to join the first part of the Cybercrime Convention in spite of First Amendment concerns regarding the Additional Protocol. This mechanism allows for a foundation of core principles that every party can agree to, and then add additional protocols depending on geography, technical developments or political discourse. If we were to translate this procedure for Internet governance issues at large, we could enable  a human rights treaty for the Internet through the creation of a core document that is successively supplemented by further principles and topics.

With regards to Internet governance, the Council’s Director of Information Society, Jan Kleijssen, in a recent blog post suggests the Council of Europe as an appropriate framework to facilitate a more thorough discussion on a Magna Charta for the World Wide Web:

“The aim of such a Convention would not be to enable individual states to regulate or control the Internet, but to codify a collective set of standards, based on existing best practice, and agreed through a multi-stakeholder dialogue. As in human rights law, by committing to such a Convention, governments would provide a collective system of guarantees, and accept to be held to account”, Kleijssen wrote.

However, the Council of Europe as such is not issuing Conventions on its own: what is needed is the ratification by states, members and non-members alike. For this, the Freedom Online Coalition might be a starting point.

Freedom Online Coalition

The Freedom Online Coalition (FOC) is a partnership of 29 governments that was founded in 2011 in The Hague and aims to advance Internet freedom. The Coalition is open to additional countries “who have demonstrated a strong commitment to human rights and Internet freedom around the globe”.

The coalition spans from Africa to Asia, Europe, the Americas, and the Middle East. As the most recent members, Spain, New Zealand, Poland, Australia and Norway have joined the Coalition in 2015, and Japan, Moldova, and Lithuania joined in 2014. All member states signed the FOC founding document and committed to the principle that the human rights people have offline are the same online.

Critics accuse FOC members of not adhering to their own standards as they themselves engage in mass surveillance that violates freedom of expression and rights to privacy. In April 2014, 60 civil society organizations sent a joint letter to FOC members, asking them to ascertain allegations of governments spying on civil society and human rights groups.[3]

While civil society has criticized the Freedom Online Coalition, discussions about an “Internet Magna Carta” might serve as a litmus test for the seriousness of the Coalition when it comes to their individual governments’ approach to human rights on the Internet. (Click here for the IPO’s evaluation of the Freedom Online Coalition’s last five years with regard to its activities, governance, funding, and structure).

An international multi-stakeholder treaty?

The Council of Europe already, at least implicitly, signaled to offer its system of conventions, recommendations and protocols to host a human rights based internet treaty. Given that the Freedom Online Coalition has 29 member states throughout the world, it would be a good starting point for the establishment of a robust international legal instrument that would protect the basic human right of freedom of expression online.

The development of such a treaty must not be left to governments alone, though. The IGF provides a unique structure for the formulation of basic principles for a free and open Internet in an inclusive multi-stakeholder process. The role of the non-governmental stakeholders in this framework, including civil society, private sector, academia and technical community, would be, inter alia, to provide input and technical knowledge, identify challenges, develop standards, demand respect for human rights, and eventually also to criticize governments that do not live up to their standards when it comes to freedom of the Internet.

At the IGF, as a joint effort of all stakeholders, including civil society, many valuable standards and principles have already been developed that would foster a free and whole Internet. However, none of these results are binding beyond an appellative character. Through the involvement of legislators and the ratification by governments, valid achievements of the IGF process would gain democratic legitimization and the additional weight and significance of international treaties or conventions.

Any international agreement must, of course, be measured against its power to actually guarantee human rights and not serve as a pretext for limits to a global and open internet. However, considering that there are a number of more restrictive initiatives already underway, including the ITU World Conference on International Telecommunications (WCIT) in Dubai 2012 or the above mentioned Joint Commuiqué, that are rather multi-lateral than multi-stakeholder, it might be well worth gathering the proponents of a free and open Internet to stitch together an international treaty that helps preserve the Internet as a global infrastructure.

Summarizing the idea, a – still to be developed and tried and tested – cooperation of all stakeholders, in their respective roles, could look as follows:

mollerpicture1
Multi-stakeholder approach to an international convention for Internet freedom (Illustration: Christian Möller)

FOC members would agree to be the first signatories of an international treaty – in whichever form – that has been developed within the IGF framework by all stakeholders with the help of Dynamic Coalitions and is implemented under the auspices of the Council of Europe, open to further interested parties as well as additional protocols.

The 11th Annual Meeting of the IGF will take place from 6-9 December 2016 in Guadalajara, Mexico.

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This post builds on a previous article and observations from the latest UN Internet Governance Forum (IGF) in November 2015 in Joao Pessao. As this paper – as the whole discourse on Internet governance – is work in progress, comments and feedback are very welcome.

[1] Canada, Japan, United States of America, Republic of South Africa, Australia, Dominican Republic, Mauritius, Panama, Sri Lanka

[2] The U.S. did not sign the Additional Protocol because it might not be in line with the First Amendment.

[3] The Coalition issued a general statement in response setting out its joint view on the subject.

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