International Internet Law

Joanna Kulesza

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136337949
• Edition: 1
• Topic: Law
• Subtopic: Science & Technology Law
• Index: Law

This book discusses the international legal issues underlying Internet Governance and proposes an international solution to its problems. The book encompasses a wide spectrum of current debate surrounding the governance of the internet and focuses on the areas and issues which urgently require attention from the international community in order to sustain the proper functioning of the global network that forms the foundation of our information fuelled society. Among the topics discussed are international copyright protection, state responsibility for cyber-attacks (cyberterrorism), and international on-line privacy protection.

Taking a comparative approach by examining how different jurisdictions such as the United States, the European Union, China and Singapore have attempted various solutions to the problem of Internet Governance, the author offers a practical solution to the problem and is a proponent of International Internet Law. Kulesza suggests that just as in the case of International Environmental Law, an Internet Framework Convention could shape the starting point for international cooperation and lead to a clear, contractual division of state jurisdictional competences.

International Internet Law is of particular interest to legal scholars engaged with the current challenges in international law and international relations, as well as students of law, international relations and political science. The issues discussed in the book are also relevant to journalists and other media professionals, facing the challenges of analyzing current international developments in cyberspace.

1 The limits of state competence

Traditional notions of jurisdiction

Statehood, sovereignty and jurisdiction in cyberspace

The Internet has revolutionized not only everyday life, but also shown the need to redefine many key legal terms which have been so far considered as well formulated and sufficient to describe and explain international relations. It has become clear that many well-established definitions require amending to better adapt to this new phenomenon.

One of the key categories that demand alteration is the concept of statehood and territorial links between international relations which follow from the fact of the existence of states. In contrast to relations hitherto defined “territorially” cyberspace is perceived by S. Rosenne as elusive, indefinite and straying from the natural characteristics of states.¹ The limitlessness of the Internet, its aterritoriality and its common presence, require that statehood in its traditional sense, or, more precisely, the competence of states to regulate social and international relations in terms of territoriality, be redefined and supplemented as far as the new, electronic dominium is concerned. In order to consider how this might be achieved, we must first consider the competence or jurisdictional activities² of the state.

In legal terms, the state is defined as an original entity, i.e. its legal and international subjectivity originates from the fact of its sole existence.³ According to the most general definition, the “state” is a conglomerate of three features: territory, population and state authority.⁴ A condition precedent to be met by an entity aspiring to statehood is the condition of effectiveness of governance;⁵ that is its independence from any external authorities or forces: in other words, its sovereignty.⁶ One may point to a wide range of indicators of state sovereignty. The most representative and uncontroversial are the exclusiveness of power over state territory and citizens, execution of foreign policy, the ability to make decisions on engaging in war or keeping peace, free recognition of states and governments, decisions concerning the creation of diplomatic relations and participation in military alliances and international organizations.⁷ Sovereignty therefore manifests itself in a number of activities performed by states at international level under competence vested by international law. State competence has two dimensions. In a material dimension it means the regulation of social relations by organizing social life within the state – commonly described as the state power towards persons, items and events. In a formal dimension, on the other hand, state competence includes the ability to establish legal norms necessary for the organization of a particular social sphere, as well as the ability to safeguard their execution (the execution of norms). This aspect of state activities is referred to as the execution of jurisdiction.⁸

The execution of jurisdictional competence is, above all, a territorial phenomenon. State competence is, as a rule, exercised in a particular physical space and remains bound thereto. The analysis of state competence is made, therefore, ratione loci, and the basic area within which it is exercised is the territory of the state.⁹ The presence of the state in a given space is the grounds for exercising state competence.¹⁰ The scope of exercised power within a particular territory formed by the state authorities is complete and exclusive.¹¹ The completeness of competence is covered by the material aspect (that is, the authority to organize all domains of social life by regulating the course of events and status of things; lex loci rei sitae; quidquid est in territori, est etiam de territorio) as well as the personal aspect (that is, the authority to regulate behaviors of natural and juridical persons present in its territory, including citizens as well as those without citizenship of the state; qui in teritorio meo est, etiam meus subditus est). The exclusivity of the competence means its legitimate execution solely (exclusively) by state authorities, i.e. legislative, executive and judicial bodies. Therefore, as a rule this means an unlimited scope of powers, with the exception of limitations imposed by international law. State competence is, consequently, principally executed within the state territory. It is, however, also executed in spaces other than the ‘own’ territory of the state, such as politically organized spaces (i.e. territories of other states or areas of other political status – e.g. in the past such territories included the UN trust territories – and free (common) spaces not subjected to any state powers (e.g. the high sea).¹² The title to execute competence in those areas shall, in each and every case, flow from international law.¹³

When analyzing the jurisdictional activities of states, it should be noted that the object of a state’s interests may be “physical” locations outside the territory of the state (for instance, trust territories), but also individual situations concerning persons, things and events located or staying outside the territory of the state. The most evident example of the above is the practice of translocation of natural and juridical persons onto territories of third countries and the unquestionable title of the state of nationality to not only render assistance to such persons, but also to undertake jurisdictional activities against them.¹⁴ The legitimacy of a state exercising laws with respect to events occurring abroad yet seriously affecting its territory is in no doubt. One of the first instances of acknowledging the (very limited at that time) jurisdictional powers of a state over events outside its territory is the resolution of the International Law Institute (ILI) dated 1879, which stipulated the right of states to sanction acts committed outside their respective territories and instances of breach of their criminal regulations by foreigners, insofar as such acts pose a threat to the existence of a state and are not penalized under the laws of the state in which they were committed.¹⁵ Execution of jurisdiction outside the territory of the state indicates two things – first, a territorial context of sovereign activities of a state supplemented by their aterritorial, personal, aspect. Second, the entitlement of a state to execute jurisdictional competence over persons, things and events outside its territory raises questions fundamental to international law. Each and every attempt to exercise jurisdictional competence provokes a conflict of jurisdictions between that of the local authorities and that of the state attempting to exercise jurisdiction on grounds other than territorial. In such cases it is necessary to identify the rules for eliminating such conflict. States who are the parties to such a dispute may develop their own rules allowing conflict resolution. This was expressed by the Permanent Court of International Justice (PCIJ) in the Lotus case (1927) when the court, addressing the issue of state jurisdictional activities, stated:

Now the first and foremost restriction imposed by international law upon a State is that (…) it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be executed by a State outside its territory except by virtue of a permissible rule derived from international custom or from a convention.

The PCIJ stressed that international law does not prohibit a state from exercising sovereign powers outside its own territory, provided that such competence may be based on a relevant permissible rule of international law. International law provides for a wide measure of discretion in determining common rules for executing extraterritorial jurisdiction with only few limitations. The PCIJ emphasizes the variety of jurisdictional principles within the disposition of states, to be adopted by states in the absence of objection or complaint from other parties.¹⁶

Without questioning the right of a state to perform jurisdictional activities against persons, things and events outside its territory, the PCIJ indicates that international law allows a certain liberty to states with respect to jurisdictional order.¹⁷ According to the court, this state jurisdiction is determined by general principles regulating the manner of exercising jurisdiction that has been “adopted without objections or complaints”¹⁸ from other parties or from conventions which allow states to exercise a particular, adopted jurisdictional regime.¹⁹ Following the PCIJ reasoning, one should first and foremost point to the general principles of establishing jurisdictional regimes. They should be at the same time individualized and applied respectively to state capacity to establish certain rules (jurisdiction to prescribe), as well to state capacity to enforce them (jurisdiction to enforce). The US Law Institute’s Restatement of the Law may prove helpful in ascertaining rules “accepted without objections or complaints” mentioned in the decision of the PCIJ.²⁰ Regarding the state capacity to establish rules, one may follow the approach presented in the Restatement that state jurisdiction to prescribe, apart from regulating the status of persons, things and events within the state territory, covers also events outside the state territory should they have or be intended to have substantial effect within the state territory.²¹ It also includes activities, interests, status or relations of its nationals both outside and within its territory.²² The prescriptive jurisdiction covers also conduct outside state territory by persons not being state nationals that is directed against the security of the state or against a particular category of other state interests.²³ The occurrence of all of the above generally described events and conduct requires, according to the Restatement, recognition by the law-maker and fulfillment of further prerequisites of reasonableness provided for in national legislation.²⁴

The abovementioned, territorial, personal and effective aspects of exercising jurisdiction show the set of fundamental principles specifying the title to exercise jurisdiction, which manifests itself in national regulations. These principles are:

• the territoriality principle (the principle of territorial jurisdiction);

• the effects principle (the principle of effective jurisdiction);

• the personality principle (the principle of personal jurisdiction); and

• the protective principle (the principle of protective jurisdiction).

The territoriality principle (the principle of territorial jurisdiction) underlies any activity of the state to prescribe laws within its territory.²⁵ This principle is the primary fundamental rule of any normative activity. It reads that if any person, thing or event is present or occurs within the state territory, then such state has the authority to regulate the status of said persons, things or events. Limitations to this rule, if any, shall be stipulated by international law.

The effects principle (the principle of effective jurisdiction), being in close relation to the territoriality principle (and therefore also called the objective territoriality principle),²⁶ concerns “activities outside the state, but having or intended to have substantial effect within the state territory”.²⁷ This principle justifies the classification of certain external events as within the jurisdiction of the state. Among contemporary instances of its exercise, provided in the resolution of the International Law Commission as early as in nineteenth century, we find execution of criminal jurisdiction over perpetrators of cross-border offences; that is acts committed abroad but having their “substantial effects” within the state territory.²⁸ More concerning examples of contemporary jurisdictional practice are statutes aimed at counteracting unfair competition in market relations covering the territories of third countries which concerns behaviors classified as illegal by the regulating statute where they are observed.²⁹

The next principle is the personality principle (the principle of personal jurisdiction). Its fundament...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• Abbreviations
• Table of cases and statutes
• 1. The limits of state competence: Traditional notions of jurisdiction
• 2. International Internet Law: Scope and sources
• 3. Examples of current national practice: Summary of differences
• 4. From international governance to International Internet Law
• 5. Summary
• Bibliography
• Index