Bernard Randall highlights the importance of strengthening state
responsibility in a borderless cyberspace, in order to uphold the principle of
self-determination and the preservation of cultural identity. He also considers
the extent to which international law supports this notion of state
responsibility in cyberspace.
With rights come responsibilities and this is so with states. State
responsibility indicates the circumstances that a state will be accountable
under international law for a breach of its international responsibilities.
According to the International Law Commission draft articles, an international
wrongful act comprises two elements: an omission or act contrary to an
international obligation, with such a breach being attributable to a state.
These obligations can be found in customary international laws, UN General
Assembly Resolutions, bilateral agreements and, possibly in relation to the
internet, aspects of soft law.
Culture, Language and Self-Determination
There has been a growing concern that the world wide web is bringing about a world saturated by the English language, United States culture and marketing strategies where mass entertainment products are made attractive to the broadest possible audience without the susceptibilities of children being considered. Those who perceive diversity as the cornerstone of culture fear the advent of a homogenised global culture and the imposition of cultural uniformity on a global scale. State responsibility requires safeguarding the right of self-determination, which is concerned with states and peoples within them having the right to maintain their culture free from external influence. This principle has been laid down in the various United Nations covenants on self-determination. Due to its amorphous and evolving nature, self-determination is an interesting factor in the new world of cyberspace.
In the time of decolonisation, the right to self-determination was linked to an emerging right: it was a right not to be governed by foreigners. Beyond the decolonisation context, the scope of the self-determination right is even more imperative, particularly in relation to culture. Both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights proclaim that all people have the right of self-determination and by virtue of this right, they freely pursue their cultural development. This right to self-determination, it is suggested, is a continuing right; it is not a right that ceases on the granting of independence. It follows from the Covenants that under customary international law, states are required to respect the culture of other states. Self-determination preserves cultural identity and there is a responsibility incumbent upon every state under customary international law to respect other states' cultural development. The natural extension of this is that developing countries may request states that dominate cyberspace to limit material on the internet that may be offensive to their culture.
Undesirable Sites
A provider of content on an internet site within a particular country, or a service provider, should have a responsibility to respect, or at least take into account, particular sensibilities and sensitivities of people in other countries who may elect to view that material. There is international concern about obscenity sites and hate sites. Where services are particularly tailored to an audience in foreign countries, service providers should differentiate between reasonable international standards, such as the right to self-determination of culture, from state sensitivities.
Although private conduct is generally not attributable to the state in international law, a state may still have a duty of prevention through the concept of due diligence. State responsibility through due diligence is to prevent harm to others. However, in order to establish such a duty, it is necessary to specify the unlawful conduct in relation to which the state owes a duty of diligence. It could be suggested that if a website advocating racial intolerance originated from a foreign state, then the foreign state would be under an obligation to take steps to act against such unlawful international conduct to promote good neighbourly relations and to ensure an orderly and responsible society. Recently, a French court ruled that the website Yahoo! had to block French residents from viewing auctions of Nazi memorabilia at its US-based auction site, or face fines. Yahoo! is not the only website to be taken to task by residents of a foreign land over online material. Amazon stopped selling Hitler's 'Mein Kampf' in Germany after complaints from the German government, which has strict laws against the dissemination of hate material. There are already judicial pronouncements that allowing insurgent groups to operate in the state's territory is a breach of state responsibility. Similarly, the position on the web should be no different for groups that incite racial intolerance in other countries. Even where the undesirable web activity is conducted by private parties, it is suggested that the duty is still on the state to control, co-operate and notify, and that the state should not avoid responsibility by arguing that the activity was caused by a private party.
Soft Law and Custom
States also have obligations on the world wide web arising from soft law and custom. A feature of the internet's development is the production of numerous forms of non-binding declarations, memorandums of understanding and sets of rules and standards. Such instruments are produced in formal circumstances. The intended effect of such instruments can be given the name 'soft' law. The use of a 'soft' law approach in international cyberspace law leads to emerging 'soft' approaches to dispute settlements. This may not be law in any real sense, but instead, are really principles which could become normative in the future. Soft law lends itself well to the internet, with its attendant problems arising from the speed with which the world's perception of the global superhighway has developed and the urgency to find solutions. A United States district court judge stated in a recent decision that measured against the information technology in the internet environment, a one-year hiatus from the work force is several generations, if not an eternity. In other words, internet time runs faster. Clearly, states which connect to the internet have agreed implicitly to a minimum set of technical standards that facilitate transmission over the internet.
The basic internet regulation is the 'request for comments' (RFC). Despite the name, these documents generally represent settled norms which have already been discussed at length and which the internet community is expected to adhere to. These have become standards, without which the internet would be unworkable. RFC's are now promulgated by the Internet Society (ISOC), but they are developed by the Internet Engineering Task Force (IETF), a technical body of engineers who set internet standards, which reports through the Internet Engineering Steering Group (IESG) to the Internet Architecture Board (IAB). The IAB is the technical advisory group of the Internet Society and is the final arbiter in cases of disputes in the standards process.
These institutions, while apparently private in nature, have a public character in the internet context. However, they are unlike any real-world public institutions. They are open to participation by any member of the virtual society, rather than being democratically elected or elected on merit. Even the Internet Society, which is the only one of these bodies with a legal personality, is open to membership to any internet user. The rules and standards which they create are not subject to ratification by national governments before becoming operative, but their regular acceptance and acquiescence suggests that their jurisdiction is international.
Flexibility is essential when dealing with standards on the internet. State sovereignty has to be respected but, at the same time, the increasing co-operation in regulating the many problems that cross state boundaries, such as intellectual property rights and pornography, has to be acknowledged. To this extent, if followed by state practice, soft law can provide evidence from which new customary laws and principles can develop and can contribute to the global harmonisation of internet laws and standards.
Whilst custom can also give rise to an enforceable legal requirement, determining what constitutes custom can be difficult. In international law, a custom becomes such when it is followed by states from some legal obligation rather from convenience. Both conduct and conviction on the part of the state are usually required before custom becomes law. This can involve examining bilateral declarations, legislation and actions in international organisations relevant to the internet. The uniqueness of the internet, lies in that although it is a recent development, it has already suggested established customary law. By agreeing to be connected globally, it is suggested that the states have acquiesced to a set of rules that regulate the internet.
The administration body for the internet is the Internet Corporation for Assigned Names and Numbers (ICANN). Under ICANN, the Internet Assigned Numbers Authority (IANA) distributes IP addresses, ie the numbers behind the domain name, to three geographically diverse Regional Internet Registries. Some view ICANN as the beginning of a unique form of governance of the global internet. If ICANN wanted, it could attach all sorts of requirements to domain name registration, eg, by banning risqué materials from the Net, or dictating privacy protections requirements. For instance, they could contractually enforce a privacy policy or require a physical and fully identifiable address before issuing the country with IP addresses. However, the US Commerce Department has requested an undertaking that the ICANN in all its contracts, should promise not to go beyond its limited goals of supervising the world's domain name system.
Conclusion
In order to effectively deal with the problems engendered by the new globalisation caused by the internet, the concept of state responsibility will have to be strengthened. Historically, nation states have been able to exercise a degree of autonomy in policy-making, since they were largely unaffected by the actions of policy-makers in other nations. This is no longer the case. The outcome of national policies in trade, immigration, even tax policy, now affect and are affected by the policies of other nations. Nation states must either negotiate policies to accommodate these externalities on an individual basis or devolve power to international organisations.
Bernard Randall
Ngee Ann Polytechnic
Bernard Randall is a lecturer in law and electronic commerce in the Department of Accountancy at Ngee Ann Polytechnic. He studied law at Victoria University, New Zealand, and completed his masters degree in law at the National University of Singapore. He is a graduate from Carnegie Mellon University of an executive education programme on electronic commerce.