[IRP] Principle of no transborder harm

[Bertrand de La Chapelle]

Dear all,

In the context of the overall discussions on rights and principles for the
Internet, I wanted to call attention to thIs recommendation of the Council
of Ministers of the Council of
Europe<https://wcd.coe.int/ViewDoc.jsp?id=1835707&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383>.
It established an important notion regarding the responsibility of States
to avoid national decisions or actions that would have a transborder impact
on access to and use of the Internet.

The relevant paragraphs are as follows (emphasis added):

*1.1. No harm*

*1.1.1. States have the responsibility to ensure, in compliance with the
standards recognised in international human rights law and with the
principles of international law, that their actions do not have an adverse
transboundary impact on access to and use of the Internet.*

*1.1.2. This should include, in particular, the responsibility to ensure
that their actions within their jurisdictions do not illegitimately
interfere with access to content outside their territorial boundaries or
negatively impact the transboundary flow of Internet traffic.*

*1.2. Co-operation*

*States should co-operate in good faith with each other and with relevant
stakeholders at all stages of development and implementation of
Internet-related public policies to avoid any adverse transboundary impact
on access to and use of the Internet.*

As you know, governments actions that can be interpreted as implementing an
implicit higher norm represent - if repeated - a foundation for recognizing
this norm as an emerging international principle.

In that regard, the fact that Egypt's shutting down access to the Internet
on its territory during the Arab Spring left all the transit traffic
untouched points to an emerging principle of "no tampering with transit
traffic" that may prove very important in the future in particular for
landlocked countries.

This was the trigger for the introduction of the above paragraphs in the
CoE recommendation and I thought it was useful to call attention to this
dimension.

As a side note, it is interesting to look at this principle in the context
of the rojadirecta and bodog cases.

Looking forward to more discussions on this topic in Baku.

Hope it helps.

Bertrand

-- 
____________________
Bertrand de La Chapelle
Internet & Jurisdiction Project Director, International Diplomatic Academy (
www.internetjurisdiction.net)
Member, ICANN Board of Directors
Tel : +33 (0)6 11 88 33 32

"Le plus beau m?tier des hommes, c'est d'unir les hommes" Antoine de Saint
Exup?ry
("there is no greater mission for humans than uniting humans")
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