[IRP] Principle of no transborder harm

Tue Jul 17 18:10:03 EEST 2012

Cher Bertrand, dear list,

thank you for this important point. I also feel that the international law-based (emerging) duties of states vis-?-vis the Internet are one of our field's most exciting subjects.

Additionally, I feel that we need to look in more detail at the impact of the duty of cooperation on national Internet policies and the non-intervention principle. I've written about some of these issues in an analysis of the HRC resolution on human rights on the Internet which will appear on the EJIL Talk! (www.ejiltalk.org<http://www.ejiltalk.org>) next Monday.
I have also made the customary law argument in my doctoral thesis which will be published later this year by Eleven Internationa. Incidentally, this allows me to tell you that - thanks to IRP member and my scientific father, Wolfgang Benedek - I am now a doctor of laws.

I'll keep you posted about the publication. Let's keep this discussion running.

Kind regards

Matthias

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Dr. Matthias C. Kettemann, LL.M. (Harvard)
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Institute of International Law and International Relations
University of Graz

Universit?tsstra?e 15/A4, 8010 Graz, Austria

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Von: irp-bounces at lists.internetrightsandprinciples.org [mailto:irp-bounces at lists.internetrightsandprinciples.org] Im Auftrag von Bertrand de La Chapelle
Gesendet: Dienstag, 17. Juli 2012 16:47
An: IRP
Betreff: [IRP] Principle of no transborder harm

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<http://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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